United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
July 8, 2003
FIFTH CIRCUIT
Charles R. Fulbruge III
____________ Clerk
No. 02-10005
____________
SANDRA JO ANDERSON, individually, legal heir, and as
independent executor of the estate of Billy D Anderson,
Plaintiff - Appellee,
versus
SIEMENS CORPORATION; ET AL,
Defendants,
SIEMENS MEDICAL SYSTEMS INC,
Defendant - Appellant.
Appeal from United States District Court for the
Northern District of Texas
Before DAVIS, CYNTHIA HOLCOMB HALL*, and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Siemens Medical Systems, Inc. (“Siemens”), a corporation that sells and distributes medical
devices, appeals from a jury’s verdict finding it liable, under a strict products liability (design defect)
theory, to Sandra Jo Anderson (“Petitioner”) and the estate of her late husband, Billy D. Anderson
*
Circuit Judge of the Ninth Circuit, sitting by designation.
(“Decedent ”), for damages resulting from the stroke, in 1996, and subsequent death, in 1998,
allegedly caused by the Siemens Servo 900C ventilator (“the ventilator”) used on Decedent following
his 1996 cardiac bypass surgery.1
Siemens argues that there was insufficient evidence to support the jury’s verdict, that the
district court made erroneous evidentiary rulings, that the damages awarded by the jury were
excessive, and that the district court abused its discretion by awarding Petitioner pre-judgment
interest during “periods of delay” caused by Petitioner.
Carried with this case is Siemens’ motion to certify to the Texas Supreme Court the question
of whether Texas would apply § 6(e) of the Restatement (Third) of Torts: Products Liability, under
which “a retail seller or other distributor of a prescription drug or medical device” can be held strictly
liable for a manufacturing defect and for negligent distribution, but not for a design defect.2 Siemens
argues that, if we do not certify the question, we should hold that Petitioner’s design defect claim is
barred by § 6(e).
I
In May of 1996, Decedent underwent cardiac bypass surgery at St. Luke’s Hospital in San
Antonio, Texas (“the Hospital”). According to Decedent’s surgeon, Dr. Lawrence Hamner (“Dr.
Hamner”), the operation lasted slightly longer t han a normal bypass operation, but was otherwise
uneventful. Following the operation, Decedent’s blood pressure and heart rate readings were both
1
Petitioner’s complaint, which sought recovery on theories of strict products liability,
negligence, breach of express warranty, and breach of implied warranty, was brought in part as a
wrongful death action, and in part as a survival cause of action. See TEX. CIV. PRAC. & REM. CODE
§ 71.
2
See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 6(e)(1998). Siemens adopts
its motion to certify by reference, and reurges it here. See FED. R. APP. P. 28(i).
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normal. Decedent was placed in the intensive care unit (the “ICU”), where he was connected to the
ventilator to support his breathing.
The ventilator had been sold by Siemens to the Hospital, who had made it available for use
on pat ients. The ventilator can be set at different ventilation modes. The desired mode setting is
selected using the ventilator’s mode selection knob. The ventilator is also equipped with several
alarms, which are intended to alert medical personnel when a patient’s exhaled air drops below, or
increases above, certain levels. Generally, a switch to the “manual” mode will trigger an alarm. Such
an alarm is necessary because, in the manual mode, the ventilator does not support a patient’s
breathing and is the equivalent of turning the ventilator completely off.
The respiratory therapist, Misti Condit (“Condit”), set the ventilator in accordance with the
settings prescribed by the anesthesiologist, Dr. Chistopher Duncan (“Dr. Duncan”). The settings
prescribed by Dr. Duncan did not involve use of the manual mode. Around the time when Condit was
attaching the ventilator to Decedent, the scene in the ICU became “harem scarem,” according to Dr.
Hamner. The ICU nurses were attempting to attach other devices, including an EKG monitor and
a blood pressure monitor, and the medical team was working frantically to fix the dopamine line and
pulse oximeter, both of which were not functioning properly.
Within the first half hour that Decedent was in the ICU, a member of the medical team became
aware that Decedent was no longer breathing. Dr. Duncan immediately disconnected Decedent from
the ventilator and began manually ventilating him with an Ambu bag. When the matter was brought
to Condit’s attention, she walked over from the nurses’ station, discovered that the ventilator was
set in the manual mode, and immediately switched the mode back to its proper setting (the SIMV
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setting).3 There had been no audible alarm alerting the medical team to the ventilator’s switch to the
manual mode.4
In the meantime, Decedent had gone into cardiac arrest. As a result, Decedent was forced
to undergo two additional surgeries during the night.5 When Decedent awoke from anesthesia the
following morning, the Hospital staff determined that Decedent had suffered a severe stroke
sometime after he was anesthetized for his first surgery, but before he awoke. Decedent remained
hospitalized for several months. Thereafter, Decedent returned home to the care of his wife,
Petitioner.
Approximately two years later, in April of 1998, Decedent died. Decedent’s death certificate,
certified by Kerr County, lists “pneumonia” as the “IMMEDIATE CAUSE (Final disease or condition
resulting in death).” As the “UNDERLYING CAUSE (disease or injury that initiated events resulting
in death),” the death certificate lists “CVA” (i.e., cerebrovascular accident, or stroke) occurring “2
yrs” before death. The physician who prepared the death certificate certified in that document that,
“To the best of my knowledge death occurred . . . due to the cause(s) and manner stated.”6
3
Condit is the only person who admits to having turned any knobs on the ventilator.
4
At oral argument, Siemens’ counsel conceded that it is undisputed that the alarm did not
sound. Siemens’ counsel also conceded that the mode knob was switched to the manual setting (from
the SIMV mode setting), which stopped ventilation.
5
In the operating room, Dr. Hamner reopened Decedent’s chest, performed manual CPR, and
put him on a heart-lung machine. Dr. Hamner placed a balloon pump in Decedent’s femoral artery
and brought him back to the ICU. Later that night, Dr. Hamner removed the balloon pump in the
ICU and took Decedent back to the operating room for a third time to correct bleeding caused by the
removal of the pump.
6
The certifying physician did not testify at trial.
-4-
On behalf of herself and Decedent’s estate, Petitioner sued Siemens in Texas state court.7
Siemens removed to federal court, which exercised diversity jurisdiction pursuant to 28 U.S.C.
§ 1332. The case then proceeded to a jury trial. The design defect question was submitted to the
jury, who returned a verdict finding that (1) Petitioner proved that there was a design defect in the
ventilator at the time it left the possession of Siemens that was a producing cause of Decedent’s 1996
stroke; (2) Petitioner proved that Decedent’s 1996 stroke was a producing cause of his death; (3)
Siemens failed to prove that the negligence of the Hospital (through its respiratory therapist and/or
its nurses) proximately caused Decedent’s 1996 stroke, or that the negligence of Dr. Duncan
proximately caused Decedent’s 1996 stroke; (4) Siemens (the ventilator) caused 100% of the
occurrence or injury (the Hospital caused 0%, and Dr. Duncan caused 0%); (5) Petitioner is entitled
to $6 million in damages as compensation for her damages resulting from the injuries to Decedent;
and (6) Decedent’s estate is entitled to $1 million in damages as compensation for injuries that
resulted from “the occurrence in question.” The district court entered judgment, and subsequently
denied Siemens’ motion for judgment as a matter of law, as well as its alternative motions for a new
trial and for remittitur. Siemens timely appealed.
II
Siemens asks us to certify to the Texas Supreme Court the question of whether Texas would
apply § 6(e) of the Restatement (Third) of Torts: Products Liability, under which “a retail seller or
7
Petitioner sought to recover the following damages as a result of Decedent’s stroke and
subsequent death: past mental anguish of Decedent; past physical impairment of Decedent; past and
future loss of consortium for Petitioner; loss of support for Petitioner; loss of care, comfort, advice,
household services, and counsel of Decedent for Petitioner; past reasonable and necessary medical
expenses; past physical pain; suffering and disfigurement; past loss of earnings and earning capacity;
pre-judgment and post-judgment interest; and reasonable and necessary burial expenses.
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other distributor of a prescription drug or medical device” can be held strictly liable for a
manufacturing defect and for negligent distribution, but not for a design defect.8
It is within our discretion to certify a state law question to the relevant state supreme court.
See Lehman Bros. v. Schein, 416 U.S. 386, 391, 94 S.Ct. 1741, 40 L.Ed.2d 215 (1974). The
Supreme Court of Texas may answer questions of law certified to it by a federal appellate court only
if “the certifying court is presented with determinative questions of Texas law having no controlling
Supreme Court precedent.” TEX. R. APP. P. 58.1 (emphasis added).
We are not convinced that the instant matter presents a determinative question of Texas law,
since Siemens has not shown that the ventilator qualifies as a “prescription drug or medical device”
within the meaning of § 6 of the Restatement. Section 6(a) specifies that a “prescription medical
device” is to be construed as something that cannot be “legally sold or otherwise distributed” without
a health-care provider’s prescription. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY
§ 6(a)(1998). Siemens does not argue that the ventilator may be legally sold or distributed only
pursuant to a health-provider’s prescription. Nor does the trial evidence support such a conclusion.9
Because Siemens has failed to demonstrate that its ventilator qualifies as a “prescription drug
or medical device” within the meaning of § 6 of the Restatement, Siemens’ motion to certify the
question of whether Texas would apply § 6(e) of the Restatement (Third) of Torts is DENIED. For
8
See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 6(e) & cmt. h (1998).
9
Contrary to Siemens’ assertion, the testimony given by Petitioner’s expert, Jeff Butler, only
showed that the ventilator should not be used without a prescription, since a physician must prescribe
specific ventilator settings before the ventilator can be used on a patient. It is of no consequence that
Butler generally agreed with Siemens’ counsel’s characterization of the ventilator as a “prescription
medical device.” Butler’s testimony does not support that the ventilator cannot be sold or distributed
without a physician’s prescription.
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this same reason, we hold that § 6(e) does not shield Siemens from liability in the instant matter.10
III
Siemens contends that there was no evidence to support the jury’s finding that Decedent’s
1996 stroke (caused by the ventilator’s design defect) was a producing cause of his death in 1998.
Over its hearsay objection, the district court admitted Decedent’s death certificate, which Petitioner
relied on to show the cause of death. According to Siemens, the district court abused its discretion
by applying the hearsay exception for state-certified documents, found at § 191.052 of the Texas
Health & Safety Code, to Decedent’s death certificate, which was certified only by the county.
Siemens also argues that, even if properly admitted, the statements contained in the death certificate
do not provide evidentiary support for the jury’s finding that Decedent’s1996 stroke was the
producing cause of his death in 1998.
Generally, we review a district court’s evidentiary rulings for an abuse of discretion. Vance
v. Union Planters Corp., 209 F.3d 438, 441 (5th Cir. 2000). However, where a party who objected
to evidence on hearsay grounds only “generically” asserted that the relevant hearsay exception does
not apply, or where that objection is not specific enough for the trial court to “take testimony, receive
10
This conclusion is bolstered by a comment to § 6, which clarifies that § 6(e)’s purpose is
to protect “intermediary parties,” such as pharmacies, who rely on “the special expertise of
manufacturers, prescribing and treating health-care providers, and governmental regulatory agencies.”
RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY cmt. h. In other words, once the government
approves a prescription product, the manufacturer distributes the product to an intermediary party,
such as a pharmacy. And, if medical personnel have determined that the product can appropriately
be dispensed to a particular patient, an intermediary who subsequently sells the product to that patient
cannot be held liable if the product is ultimately deemed to have been defectively designed. Siemens
is not the type of “intermediary” contemplated by this scheme. Unlike a pharmacy, Siemens’ role in
the distribution chain occurs prior to the time that any discretionary prescription is made.
Accordingly, Siemens is subject to the general rule that distributors of products, even specialized
machines, can be held strictly liable for design defects. See id. (citing §§ 1 and 2 of the Restatement).
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argument, or otherwise explore the issue raised,” we review the district court’s ruling for plain error
only. See United States v. Williams, 264 F.3d 561, 575-76 (5th Cir. 2001).
Before the district court, Siemens’ counsel made the following argument as to why
Decedent’s death certificate should not be admitted under the “vital statistics” exception to the
hearsay rule:
I think that it’s an issue that requires expert testimony. They only have one medical
expert they’re going to use, Dr. Olinger. They did not identify him as a person who
was going to testify on the cause of death . . . And I don’t believe that the exception
to the hearsay rule on vital statistics, which this is, not the government record
exception, but it’s under the vital statistics, makes all of the opinions as to cause and
manner of death come in if it is one that requires expert testimony.
Siemens’ counsel elaborated:
And I don’t think that they can just put a death certificate into evidence to prove
something two years after an event was caused by it. There is some case law that
supports that, where the Court has refused to allow difficult diagnoses and causes
stated in death certificates. And I’ll cite the Court to [Holbrook v. Lykes, 80 F.3d 777
(3rd Cir. 1996)11] where the court took out the terms – wouldn’t allow the diagnosis
and finding to meet the legal elements contained in the death certificate because that
was a complicated issue. And I think this is different. I mean, if he had died right
afterwards, that is one thing. But here we have a span of two years, and the death
certificate says pneumonia, then secondary to. I think that’s an issue he has to prove
by competent expert testimony in this case.
Clearly, Siemens’ objection, which focused on whether the death certificate could be admitted as
evidence of cause of death without supporting expert testimony, did not direct the court’s attention
to the specific question before us ))whether the death certificate’s county-certified status precluded
it from being admitted under § 191.052 of the Texas Health & Safety Code. Therefore, we review
the court’s ruling for plain error only. See Williams, 264 F.3d at 575-76.
11
In Holbrook, out-of-court statements on causation were struck on the ground that their
prejudice outweighed any relevance under FED. R. EVID. 403.
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Plain error is “‘1) an error; 2) that is clear . . .; and 3) that affects the defendant’s substantial
rights.” Williams, 264 F.3d at 574 (quoting United States v. Izaguirre-Losoya, 219 F.3d 437, 441
(5th Cir. 2000)). “Clear” means that the error is clear (i.e., obvious) under current law. Brown v.
Bryan County, 219 F.3d 450, 466 (5th Cir. 2000)(citing United States v. Olano, 507 U.S. 725, 734,
113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). An error “affect s substantial rights” if it necessarily
impacted the outcome of the district court proceedings. Id. (citing Olano, 507 U.S. at 734). If all
three of these elements are met, we may, in our discretion, correct “those errors that seriously affect
the fairness, integrity, or public reputation of the judicial proceedings.” Olano, 507 U.S. at 734.
To interpret the breadth of the hearsay exception found at § 191.052, we must look first to
the “plain and common meaning of the statute’s words.” Fitzgerald v. Advanced Spine Fixation Sys.,
996 S.W.2d 864, 865 (Tex. 1999). The plain language of § 191.052 encompasses only records
certified by the “state registrar.” TEX. HEALTH & SAFETY CODE § 191.052 (Vernon 2001).
Conspicuously absent is any statutory language providing that a death certificate certified only by a
county))or other governmental subdivision))is also admissible under that statute. Compare TEX.
HEALTH & SAFETY CODE § 191.052 (“A copy of a birth, death, or fetal death record registered under
this title that is certified by the state registrar is prima facie evidence of the facts stated in the
record.”)(emphasis added) with TEX. CIV. ST. art. 3731a (“Any . . . certificate . . . made by an officer
of this State or of any governmental subdivision thereof, or by his deputy, or person or employee
under his supervision, in the performance of the functions of his office and employment, shall be, so
far as relevant, admitted in the courts of this State as evidence of the matter stated therein
. . . .”)(emphasis added), repealed by Texas Rules of Evidence, eff. Sept. 1, 1983 (Acts 1939, 46th
Leg., § 1); Texas Rules of Criminal Evidence, eff. Sept. 1, 1986 [Acts 1985, 69th Leg., ch. 685, §
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9(b)].12 Thus, we conclude that the district court’s decision to admit the death certificate was
contrary to the plain language of § 191.052.
Furthermore, the district court’s decision to admit the death certificate under § 191.052 finds
no support in Texas case law. No Texas court has addressed the question of whether, under
§ 191.052, statements on cause of death found in a death certificate certified only by the county are
admissible as evidence of cause of death. If faced with this question, it is likely that a Texas court
would closely follow § 191.052's state certification requirement; courts applying the statutory
predecessor to § 191.052, TEX. CIV. STAT. art. 4477, Rule 54a,13 strictly adhered to its requirement
that the death certificate be certified by the state registrar. See Armstrong v. Employers Cas. Co.,
357 S.W.2d 168, 170 (Tex. Civ. App. – Waco 1962, no writ)(rejecting the argument that certification
of a death certificate by a city official was sufficient to satisfy the state certification requirement of
art. 4477, Rule 54a); see also Texas Reserve Life Ins. Co. v. Dees, 368 S.W.2d 886, 888 (Tex. Civ.
App. – San Antonio 1963, writ ref’d n.r.e.)(holding that a death certificate, prepared by the Justice
of the Peace and not signed by the state registrar, was not admissible under art. 4477, Rule 54a);
12
Prior to its repeal, article 3731a made admissible, so far as relevant, any death certificate
made by an officer of the state or of any governmental subdivision thereof. See Combined American
Ins. Co. v. Gilmore, 428 S.W.2d 857, 859 (Tex. Civ. App. – Fort Worth, 1968).
13
Rule 54a provided
[t]hat the state registrar shall, upon request, supply to any properly qualified applicant
a certified copy of the record of any birth or death registered under provisions of this
Act, for the making and certification of which he shall be entitled to a fee of fifty
cents, to be paid by the applicant. And any such copy of the record of a birth or death,
when properly certified by the state registrar, shall be prima facie evidence in all
courts and places of the facts therein stated.
TEX. CIV. STAT. art. 4477, Rule 54a (emphasis added), repealed by Acts 1989, 71st Leg., ch. 678,
§ 13(1), eff. Sept. 1, 1989 (adopting the Texas Health & Safety Code).
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Washington Nat. Ins. Co. v. Chavez, 106 S.W.2d 751, 752 (Tex. Civ. App. – El Paso 1937, writ
dism’d)(holding that the district court correctly excluded the death certificate signed by the coroner,
since art. 4477, Rule 54a “applies only to copies of the record certified by the state registrar of vital
statistics”); Universal Life & Acc. Ins. Co. v. Ledezma, 61 S.W.2d 165, 166 (Tex. Ci v. App. –
Beaumont, 1933, writ dism’d)(holding that the trial court properly excluded a death certificate
certified only by a local, city registrar because, under art. 4477, Rule 54a, the power to make certified
copies of death records receivable in “all courts” is conferred upon the state registrar).14 For the
foregoing reasons, we conclude that the district court erred in its decision to admit Decedent’s
county-certified death certificate over Siemens’ hearsay objection, and that this error was clear under
current law.
The district court’s clear error impacted the outcome of the trial. The death certificate was,
in essence, the only evidence linking Decedent’s 1996 stroke to his death in 1998.15 Petitioner failed
14
Courts from other jurisdictions have similarly applied the plain meaning of hearsay
exceptions requiring state certification. See, e.g., State v. Hamilton, 16 N.C. App. 330, 334
(1972)(explaining that certification by the county does not satisfy the requirements of North
Carolina’s corollary to Tex. Health & Safety Code § 191.052); Williams v. Mertz, 549 So.2d 87, 89
(Ala. 1989)(declining to admit a death certificate under Alabama’s corollary to Tex. Health & Safety
Code § 191.052, since the death certificate at issue was certified by another state, instead of
Alabama’s state registrar of vital statistics).
15
In the district court, Petitioner effectively conceded that the only evidence supporting the
jury’s finding that Decedent’s stroke was a producing cause of his death was the death certificate.
In the “Plaintiff’s Response to Defendant’s Motions and Brief in Support,” Petitioner argued:
It was undisputed that the death certificate referred to the stroke that is the subject
of this case . . . The only other evidence concerning the cause of death was the
statement by Mrs. Anderson in her journal that Bill had died of pneumonia and a
“second stroke.” To the extent, if any, that this evidence presented a conflict
concerning cause of death, the jury was entitled to give credence to the death
certificate over the lay statement of a grieving widow, who admittedly has no medical
training. The jury thus had a reasonable basis for concluding that Mr. Anderson’s
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to present the testimony of the certifying physician))or any other expert medical witness))to
support the death certificate’s conclusion that the immediate cause of Decedent’s death, pneumonia,
was “due to” (or “a likely consequence of”) his 1996 stroke. Thus, insofar as Petitioner’s suit against
Siemens sought to recover damages for Decedent’s death, the critical lynchpin holding together
Petitioner’s case was the erroneously-admitted death certificate’s unsupported conclusion on the
cause of death. Even assuming, arguendo, that the death certificate’s statements on cause of death
were admissible,16 we seriously doubt that such statements, unsupported by expert testimony, could
stroke was a producing cause of his death.
In her appellate brief, Petitioner argues that the death certificate is not the only evidence that
Decedent’s death resulted from his stroke, since Petitioner’s state court pleading (in her suit against
the doctors and nurses) contained the statement that Decedent’s death “resulted from complications
flowing from the original injury on May 31, 1996.” This argument is unavailing; such pleadings are
not evidence. See Hidalgo v. Surety Sav. & Loan Ass’n, 462 S.W.2d 540, 543 (Tex.1971).
16
Even if Decedent’s death certificate had been properly certified by the state registrar, its
statements on cause of death may not have been admissible. Whether such statements are admissible
would depend on how they are characterized: as facts, or as opinions. If such statements can be fairly
characterized as facts, then they are admissible as prima facie evidence of cause of death. TEX.
HEALTH & SAFETY CODE § 191.052; see also Aetna Life Ins. Co. v. Kegley, 389 F.2d 348, 355 (5th
Cir. 1967)(holding that, under former Tex. Rev. Civ. Stat. Ann. art. 4477, Rule 54a, a death
certificate’s identification of the cause of death as a “coronary thrombosis” is prima facie proof that
coronary thrombosis was the cause of death); Marker v. Prudential Ins. Co. of Amer., 273 F.2d 258,
264 (5th Cir. 1960)(applying Tex. Rev. Civ. Stat. Ann. art. 4477, Rule 54a, to death certificates
prepared by a medical examiner, and reasoning that “findings in the original and amended certificate
of suicide and accident were findings of fact, admissible as prima facie evidence only, and subject
under the controlling rules of evidence, to full explanation and contradiction”); Reserve Life Ins. Co.
v. Shacklett’s Estate, 412 S.W.2d 920, 922 (Tex. Civ. App. – Tyler 1967, writ ref’d n.r.e.)(holding
that, under Tex. Rev. Civ. Stat. Ann. art. 4477, Rule 54a, a statement in a death certificate that the
death was accidental constitutes prima facie evidence of accidental death); Tix v. Employers Cas. Co.,
368 S.W.2d 105, 110 (Tex. Civ. App. – Houston [1st Dist.] 1963, no writ)(stating that a death
certificate is prima facie evidence of cause of death); Standard Ins. Co. v. Thomas, 383 S.W.2d 447,
452 (Tex. Civ. App. – Tyler 1964, no writ)(“[T]he death certificate is of some probative force” in
determining cause of death). If, however, such statements on cause of death are better characterized
as opinions, then they may not be admissible. See Texas Employers’ Ins. Assoc. v. Gregory, 534
S.W.2d 166, 168 (Tex. Civ. App. – Houston [14 dist.] 1976, no writ)(determining that the cause of
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have provided sufficient evidentiary support for the jury’s finding that Decedent’s 1996 stroke (listed
on the death certificate as the “underlying” cause of death) was the producing cause of his death from
pneumonia (the “immediate” cause of death) two years later. It was Petitioner’s burden at trial to
establish, with “reasonable medical probability,” that Decedent’s stroke was a producing cause of his
death. See Minnesota Mining & Mfg. Co. v. Atterbury, 978 S.W.2d 183, 197 (Tex. App.–Texarkana
1998, pet. denied). Ordinarily, expert testimony is needed to satisfy the reasonable medical
probability standard for establishing a causal link. See id. at 197-98; see also Williams v. NGF, Inc.,
994 S.W.2d 255, 256-57 (Tex. App.–Texarkana 1999, no pet.)(reasoning that expert testimony that
demonstrated the possibility of a causal link, but failed to satisfy the reasonable medical probability
standard, was insufficient). However, for unexplained reasons, Petitioner failed to present any expert
testimony on the causal link between Decedent’s stroke and his death. Considering that two years
elapsed between Decedent’s stroke and his death, and considering that pneumonia is listed on
Decedent’s death certificate as the more “immediate” cause of his death, expert testimony was
necessary to establish the reasonable medical probability of a causal link between Decedent’s 1996
stroke and his death. We have found no Texas case holding that a death certificate’s statement
concerning the secondary (or “underlying” ) cause of a person’s death is sufficient, without
supporting expert testimony, to establish that the secondary cause was, in all reasonable medical
probability, a producing cause of that death. For these reasons, we conclude that the district court’s
death portion of a death certificate is inadmissible because the “notation is not a ‘fact’. . . but is,
rather, an opinion of the justice of the peace”); Armstrong v. Employers Cas. Co., 357 S.W.2d 168,
169-72 (Tex. Civ. App. – Waco 1962, no writ)(holding that a statement in a death certificate signed
by Justice of the Peace, after inquest, that the death was accidental was not admissible where the
cause of death was controverted).
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erroneous admission of Decedent’s death certificate))and its unsupported statements on cause of
death))affected Siemens’ “substantial rights.” Cf. Williams, 264 F.3d at 576 (finding no reversible
error where the erroneous admission of a prosecution witness’ prior consistent testimony was not the
“critical lynchpin holding together the Government’s case”).
The district court’s erroneous decision to admit the Decedent’s death certificate))the only
evidence linking Decedent’s 1996 stroke to his death in 1998))seriously affected the fairness of the
judicial proceeding. Its erroneous decision affected not only the jury’s determination that Decedent’s
1996 stroke was the producing cause of his death, but also its calculation of damages. The jury’s $7
million award of damages lumps damages incurred as a result of Decedent’s1996 stroke together with
damages associated with Decedent’s subsequent death two years later. From the jury’s verdict form,
there is no way of knowing the specific amount of the damages award that is attributable to the jury’s
finding that Decedent’s 1996 st roke was a producing cause of his death. The jury form failed to
identify those damages stemming solely from the 1996 stroke separately from those damages
stemming from his death. Thus, if the district court’s error is not corrected, then an undetermined
amount of the $7 million judgment against Siemens will rest on evidence that clearly should have been
excluded at trial. It is within our discretion to correct thi s error. See Olano, 507 U.S. at 734.
Under the Federal Rules of Civil Procedure, a court may grant a new trial "to all or any of the
parties and on all or part of the issues...." FED.R.CIV.P. 59(a). This authority is also vested in courts
of appeals; it is within our discretion to grant a new trial on some or all of the issues raised. Colonial
Leasing of New England, Inc. v. Logistics Control Int’l, 770 F.2d 479, 481 (5th Cir. 1985).
However, “[p]artial new trials should not be resorted to 'unless it appears that the issue to be retried
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is so distinct and separable from the others that a trial of it alone may be had without injustice.’” Id.
(quoting Caskey v. Village of Wayland, 375 F.2d 1004 (2d Cir.1967)(quoting Gasoline Products Co.
v. Champlin Refining Co., 283 U.S. 494, 51 S.Ct. 513, 75 L.Ed. 1188 (1931))). Thus, in cases
where the issues subject to retrial are “so interwoven with other issues in the case that they ‘cannot
be submitted to the jury independently ... without confusion and uncertainty, which would amount
to a denial of a fair trial,’ then it is proper to grant a new trial on all of the issues raised.” Id. (quoting
Gasoline Products, 283 U.S. at 500)).
Assuming, arguendo, that a reasonable jury could have found))as the jury did))that Siemens
is liable to Petitioner for damages associated with Decedent’s stroke, it would, nonetheless, cause
considerable confusion and uncertainty if we granted a retrial only on the issue of whether Siemens
is liable for damages associated with Decedent’s death. Given the interrelatedness of these issues,
and given that the jury’s award of damages fails to identify damages incurred as a result of Decedent’s
stroke separately and apart from those damages associated with Decedent’s death, we conclude that
there should be a retrial of all the issues raised, including damages. See Colonial Leasing, 770 F.2d
at 481; cf. Nissho-Iwai Co. v. Occidental Crude Sales, 729 F.2d 1530, 1538-39 (5th Cir.
1984)(holding that it was appropriate to order a complete new trial, rather than only a partial retrial,
of fraud claim, since that claim arose out of acts surrounding contract breach and understanding of
fraud required understanding of contract claim); Davis v. Safeway Stores, Inc., 532 F.2d 489, 491
n.3 (5th Cir. 1976)(ordering a new trial limited to a redetermination of only two items of damages,
but only because “the judge clearly separated the amounts he awarded for each element of damages”);
Allen v. Chance Mfg. Co., 873 F.2d 465, 473-74 (1st Cir. 1989)(ordering new trial on liability only
where the error did not affect the determination of damages).
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IV
For the foregoing reasons, we VACATE the jury’s verdict and its award of damages, and we
REMAND for a retrial on all of the issues raised at trial.17 Siemens’ motion to certify the question
of whether Texas would apply § 6(e) of the Restatement (Third) of Torts is DENIED.
17
Because we have remanded this case for a retrial on of all of the issues raised below, we
need not address Siemens’ arguments 1) that no reasonable jury could have found that there was a
design defect in the ventilator that was a producing cause of Decedent’s 1996 stroke, 2) that
Decedent’s death certificate should have been excluded because Petitioner failed to disclose the death
certificate during pretrial disclosures, 3) that no reasonable jury could have found that Siemens failed
to prove that negligence on the part of the “medical” team was the proximate cause of Decedent’s
stroke, and 4) that no reasonable jury could have found that Siemens was 100% responsible for
causing the injury/occurrence. Moreover, we need not address Siemens’ argument that the damages
awarded by the jury were excessive, or its argument that the district court failed to calculate properly
the award of pre-judgment interest.
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