United States Court of Appeals,
Fifth Circuit.
No. 93-2928.
Regina DIAZ, et al., Plaintiffs,
Regina Diaz, Plaintiff-Appellant,
v.
The METHODIST HOSPITAL, et al., Defendants,
Baylor College of Medicine, et al., Defendants-Appellees.
March 6, 1995.
Appeal from the United States District Court for the Southern
District of Texas.
Before BARKSDALE and PARKER, Circuit Judges, and COBB, District
Judge.1
COBB, District Judge:
Appellant, Regina Diaz, brought suit in federal district court
alleging that, while in the care of Appellees, she received
negligent medical treatment that caused her to become deaf. 2 The
1
District Judge of the Eastern District of Texas, sitting by
designation.
2
This suit was originally filed in 1988 by Regina Diaz and
her parents against sixteen different health care providers.
Many of these parties were dropped from the suit before the case
went to trial in 1993. By the time this case was presented to a
jury, Ms. Diaz was the sole plaintiff, and Baylor College of
Medicine, Dr. Temple Williams, Dr. Major Bradshaw and Dr. Pedro
Frommer (Appellees) were the defendants.
Although formally naming Dr. Victor Rivera, his
physician's assistant and Dr. Frommer in this appeal,
Appellant fails to specify any error with respect to these
appellees in her brief. Accordingly, the court will not
entertain an appeal as to these three individuals. Matter
of Texas Mortgage Servs. Corp., 761 F.2d 1068, 1073 (5th
Cir.1985) ("issues not raised on appeal in the brief of the
Appellant may be considered waived, and they cannot be
1
jury found in favor of Appellees. Appellant's post-trial motion
requesting relief from judgment or, in the alternative, a new trial
was denied. For the reasons set out below, we AFFIRM the ruling of
the district judge.
BACKGROUND
On January 3, 1987, Regina Diaz was severely injured in an
automobile accident in her hometown of Merida, Mexico. Ms. Diaz
was rushed to a Merida hospital. The doctors there determined that
amputation of Ms. Diaz's left leg was necessary to save her life.
Despite the treatment she received in Merida, Ms. Diaz's condition
worsened over the next 48 hours. Her accident produced
life-threatening renal failure and infection.
In an effort to save her life, Ms. Diaz was transported by air
ambulance to the Texas Medical Center in Houston, Texas. On
arrival, Ms. Diaz was in septic shock with decreased kidney
function, and her remaining leg had developed gangrene.
Numerous medications were administered in an effort to regain
kidney function and stave off the infection. These medications
included several loop diuretics and an aminoglycoside antibiotic,
Amikacin. Ms. Diaz's renal function was restored and, although it
was necessary to amputate her right leg, she eventually overcame
the infection. Unfortunately, the medication which saved her life
apparently had a side-effect; Ms. Diaz contends that the
antibiotics produced severe bilateral loss of hearing.
On December 23, 1988, Regina Diaz, and her parents, Illeana
noticed or entertained by the Court of Appeals").
2
Diaz and Rodrigo Diaz, filed suit against Baylor College of
Medicine, Methodist Hospital and various physicians. She
maintained that these defendants could have prevented her loss of
hearing with proper daily monitoring of her blood serum
aminoglycoside levels.
Discovery was conducted for almost five years. The parties
and numerous medical experts were deposed. The case was tried
before a jury from August 9 to August 20, 1993. The jury returned
a verdict in favor of the defendants.
On October 4, 1993, before final judgment was entered, Ms.
Diaz filed a motion requesting relief from judgment or,
alternatively, a new trial.3 Ms. Diaz based this motion upon newly
discovered evidence that, in her opinion, proved Dr. Williams and
Dr. Bradshaw had perjured themselves while testifying at the trial.
Throughout their depositions and testimony at trial, Drs.
Williams and Bradshaw steadfastly maintained that, in January,
3
Rule 59(a) and 60(b)(3) provide:
A new trial may be granted to all or any of the parties
and on all or part of the issues in an action where
there has been a trial by jury, for any of the reasons
for which new trials have heretofore been granted in
actions at law in the courts of the United States.
Fed.R.Civ.P. 59(a).
On motion and upon such terms as are just, the court
may relieve a party or a party's legal representative
from a final order or judgment, order or proceeding for
the following reasons: ... (3) fraud (whether
heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse
party.
Fed.R.Civ.P. 60(b)(3).
3
1987, it was impossible to procure laboratory testing for
aminoglycoside blood serum levels between Friday evening and Monday
morning. Appellant's case turned on whether Appellees' failure to
perform weekend monitoring of her blood serum levels was negligent
conduct and the proximate cause of her hearing loss. However,
Appellant was unable to produce any evidence at trial which
contradicted the testimony of Drs. Williams and Bradshaw.
After the jury entered its verdict, Appellant obtained an
affidavit from Dr. Edward Talmage. Dr. Talmage stated that, on the
dates Appellant was hospitalized, it was possible to order weekend
aminoglycoside blood serum testing at Methodist Hospital.4
Appellant asserts that Dr. Talmage's affidavit amounts to
proof that Drs. Williams and Bradshaw perjured themselves at trial.
She maintains that the affidavit is new evidence that demands
relief from judgment or, alternatively, a new trial.
The trial court disagreed. On November 19, 1993, the trial
court denied Appellant's motion and entered a final judgment
reflecting the jury verdict.5
4
Dr. Talmage's affidavit states, in relevant part:
Antibiotic, and more particularly Amikacin and
aminoglycoside, serum levels and the results thereof
could be obtained on Saturdays and Sundays in January,
1987, by any physician at Methodist Hospital. (Talmage
Aff. ¶ 2).
5
Appellees, Dr. Williams and Dr. Bradshaw, express a concern
that this court lacks appellate jurisdiction since Appellant's
Rule 59 and 60(b)(3) motions were filed before final judgment was
entered. We find that this court has jurisdiction and direct
Appellees to Greater Houston Chapter of the Am. Civil Liberties
Union v. Eckels, 755 F.2d 426, 427 (5th Cir.), cert. denied, 474
U.S. 980, 106 S.Ct. 383, 88 L.Ed.2d 336 (1985), which resolves
4
DISCUSSION
A. MOTION FOR NEW TRIAL
Appellant contends that the trial court committed reversible
error when it ignored her "newly discovered evidence," namely Dr.
Talmage's affidavit, and denied her motion for a new trial.
Pursuant to Rule 59 of the Federal Rules of Civil Procedure, the
district court has discretion to grant a new trial on this ground.
Johnston v. Lucas, 786 F.2d 1254, 1257 (5th Cir.1986). Before we
will disturb the trial court's ruling, however, we must find a
clear abuse of discretion. Osburn v. Anchor Laboratories, Inc.,
825 F.2d 908, 917 (5th Cir.), cert. denied, 485 U.S. 1009, 108
S.Ct. 1476, 99 L.Ed.2d 705 (1988); Johnston, 786 F.2d at 1257;
LaFever, Inc. v. All-Star Ins. Corp., 571 F.2d 1367, 1368 (5th
Cir.1978). As this court noted in Brun-Jacobo v. Pan Am. World
Airways, Inc., 847 F.2d 242, 244 (5th Cir.1988):
When the district court denies a motion for new trial,
appellate review is especially deferential because in that
instance deference to the district court operates in harmony
with deference to the jury's determination of the weight of
the evidence and the constitutional allocation to the jury of
questions of fact.
In deciding whether newly discovered evidence is sufficient
to warrant a new trial, the district court should consider whether
the evidence: (1) would probably have changed the outcome of the
trial; (2) could have been discovered earlier with due diligence;
and (3) is merely cumulative or impeaching. Osburn, 825 F.2d at
917; Johnston, 786 F.2d at 1257; LaFever, 571 F.2d at 1368. The
this question.
5
burden is on Appellant to demonstrate that the new evidence clearly
weighs in favor of a new trial.
We are unconvinced that Dr. Talmage's affidavit meets any of
the requirements listed above.
Dr. Talmage's affidavit, at best, impeaches Drs. Williams' and
Bradshaw's testimony that an aminoglycoside blood serum test could
not be performed over the weekend. Assuming arguendo that this
case is retried and Dr. Talmage is allowed to testify, there is no
guarantee that the jury will accept his testimony and reject the
testimony of Drs. Williams and Bradshaw. Given the state of the
evidence, the question of whether aminoglycoside blood serum levels
could be tested on a weekend would be a matter for the jury to
resolve from its perception of witness credibility.6
Appellant is also unable to make a showing that, even with due
diligence on her part, Dr. Talmage's testimony would have been
unavailable prior to trial. The record indicates that the parties
conducted discovery for over five years and took the depositions of
numerous expert witness. Appellant maintains that she was not
alerted to the possibility that Drs. Williams and Bradshaw were
lying until after the trial was concluded. She further indicates
6
It is important to distinguish this type of impeachment
evidence from evidence of a more compelling nature. If Appellant
had presented the district court with documentation (hospital
records or the like) conclusively establishing that Methodist
Hospital routinely conducted weekend aminoglycoside blood serum
tests in January, 1987, this element of the test could weigh in
favor of granting a new trial. Appellant would still, however,
have the burden of proving that (1) even with diligent pre-trial
discovery the evidence was unavailable; and (2) that the
evidence would probably have changed the outcome of the case.
6
that she had no reason to question the veracity of the statements
these doctors gave at deposition and that she accepted their story
as true. While cognizant of Appellant's trusting nature, we
believe a prudent litigant would independently investigate such a
pivotal issue and be less than willing to adopt blindly the
statements of the opposing party. Appellant is unable to
demonstrate that, had she vigorously pursued this avenue of
discovery prior to trial, she would have failed to uncover evidence
similar to the statements contained in Dr. Talmage's affidavit. We
are unconvinced that Dr. Talmage's affidavit is the type of "new
evidence" that a truly diligent litigant would be powerless to
unearth given five years of discovery.
Furthermore, Appellant failed to demonstrate that Dr.
Talmage's testimony would probably change the outcome of this case.
This was a complicated case requiring nearly two weeks of trial and
numerous expert witnesses. Several experts testified that the
medical treatment administered by Drs. Williams and Bradshaw was
appropriate under the circumstances. The trial judge was afforded
the opportunity to gage the credibility of these witnesses, a
luxury this court does not enjoy. We decline Appellant's
invitation to second-guess the trial court. Accordingly, we are
unconvinced that the district court abused its discretion when it
determined that Dr. Talmage's testimony was not such as would
probably change the outcome of this trial.7
7
This is especially true since Appellant fails to specify
the foundation supporting Dr. Talmage's affidavit. Examination
of Dr. Talmage's curriculum vitae reveals that he has never been
7
B. MOTION FOR RELIEF FROM JUDGMENT
Appellant also asserts that the trial court erred by not
granting her Rule 60(b)(3) motion for relief from judgment. She
reasons that the statements made at trial by Drs. Williams and
Bradshaw amount to perjury, making relief under Rule 60(b)(3)
appropriate.
"A rule 60(b)(3) assertion must be proved by clear and
convincing evidence, and the conduct complained of must be such as
to prevent the losing party from fully and fairly presenting its
case." Longden v. Sunderman, 979 F.2d 1095, 1103 (5th Cir.1992),
citing Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th
Cir.1978). The purpose of the rule is to afford parties relief
from judgments which are unfairly obtained, not those which may be
factually incorrect. Johnson v. Offshore Exploration, Inc., 845
F.2d 1347, 1359 (5th Cir.), cert. denied, 488 U.S. 968, 109 S.Ct.
497, 102 L.Ed.2d 533 (1988).
The decision to relieve a party from final judgment is within
the sound discretion of the trial court. Montgomery v. Hall, 592
F.2d 278, 279 (5th Cir.1979). We will disturb the district court's
decision only for an abuse of discretion. Johnson, 845 F.2d at
1359; Montgomery, 592 F.2d at 279.
Appellant contends that the deposition and trial testimony of
Drs. Williams and Bradshaw, on the issue of whether an
on the staff of Methodist Hospital and the affidavit does not
indicate whether he, or someone he knows, ever ordered an
aminoglycoside blood serum test from Methodist Hospital on or
before January 5, 1987.
8
aminoglycoside blood serum test could be run on a weekend, amounted
to perjury. Appellant asserts that Rule 60(b)(3) is in place to
ensure that a party can reap no reward for engaging in fraudulent
conduct. We agree with Appellant's general statement, but we must
examine the record to determine if it is to be applied here.
If unequivocal evidence establishes that a party willfully
perjured himself, and thereby prevented the opposition from fully
and fairly presenting its case, use of Rule 60(b)(3) to grant the
innocent party a new trial would be a proper response. This,
however, is not such a case.
Drs. Williams and Bradshaw testified that it was impossible
to monitor aminoglycoside blood serum levels on the weekends. In
addition, Dr. Edwin M. Ory, Co-Director of the Infectious Diseases
Research Laboratory at Methodist Hospital, submitted an affidavit
which unequivocally states that weekend lab testing for
aminoglycoside blood serum levels was unavailable at Methodist
Hospital in January, 1987.8
8
Dr. Ory's affidavit states, in relevant part:
In January, 1987, The Methodist Hospital had not yet
decided to offer physicians routine testing of serum
aminoglycoside levels. The Infectious Disease Research
Laboratory had agreed to do a pilot trial of performing
aminoglycoside level testing. This testing was
performed once a day by research technicians in the
Infectious Disease Research Laboratory on a Monday
through Friday basis. Serum samples were delivered to
the Infectious Disease Laboratory around noon each day
and assays were performed in a batch. Aminoglycoside
level determinations could not be done on either a
routine or emergency basis after 5 p.m. on weekdays or
on weekends.
(Ory Aff. ¶ 2).
9
Dr. Talmage's affidavit squarely contradicts the assertions of
Drs. Ory, Williams and Bradshaw. Dr. Talmage claims that his
affidavit is based on personal knowledge. There is no indication,
however, as to how Dr. Talmage acquired this personal knowledge.
According to his own curriculum vitae, Dr. Talmage has never worked
in the Methodist Hospital, nor is he a member of its staff. At
most, Dr. Talmage's affidavit creates a factual dispute over
whether the Methodist Hospital's Infectious Diseases Research
Laboratory was capable of performing aminoglycoside blood serum
testing on weekends in January, 1987. Appellant's new evidence
does not conclusively establish that Drs. Bradshaw and Williams
intentionally perjured themselves. As we noted above, Rule
60(b)(3) is not intended to correct those outcomes which may be
factually incorrect, but rather to protect against a party
prevailing by unfair means. Johnson, 845 F.2d 1347.
Even if we accept as true Appellant's assertions of perjury,
we would only set aside the decision of the trial court if we found
that Appellee's actions foreclosed the possibility that Appellant
could "fully and fairly present her case." Longden, 979 F.2d at
1103. In the case at hand, Appellant had independent access to
information concerning the availability of aminoglycoside testing
in January, 1987. Dr. Talmage's affidavit proves that this
information was not under the exclusive control of the Appellees.
It is likely that a more focused effort by Appellant could have
uncovered this evidence prior to trial. When a party is capable of
fully and fairly presenting her case notwithstanding "fraud,
10
misrepresentation, or other misconduct," the trial court does not
err when it denies a Rule 60(b)(3) motion. See Rozier v. Ford
Motor Co., 573 F.2d 1332 (5th Cir.1978) (finding abuse of
discretion where the alleged fraud concerned information within the
exclusive purview of wrongdoer).
As we noted above, Rule 60(b)(3) is not intended to correct
those outcomes which may be factually incorrect, but rather to
protect against a party prevailing by unfair means. Johnson, 845
F.2d 1347. Appellant has failed to produce clear and convincing
evidence in support of her very serious charge of perjury and
likewise fails to demonstrate that any perjured testimony prevented
her from fully and fairly presenting her case. Accordingly, we
find that the trial court did not abuse its discretion when it
refused to grant her motion for relief from judgment.
C. SANCTIONS
Drs. Frommer and Rivera have asked the court for sanctions
for a frivolous appeal. Fed.R.App.P. 38. We find it indeed
puzzling that Dr. Rivera filed a brief and sought sanctions in this
court because he was not cast in judgment. It was therefore
unnecessary for his attorney to file any briefs in this court and
to attend oral argument. His motion for sanctions is denied based
upon this fact which was conceded at oral argument. Dr. Frommer's
motion presents slightly different facts. He was cast in judgment,
but Appellant failed to raise any issue with respect to him in her
brief to this court. Rather than file briefs and attend oral
argument, Dr. Frommer would have been well-advised to simply file
11
a motion to dismiss once it became apparent that he was not
included in the appeal. We therefore find that the sanctions
sought by Dr. Frommer in defense of Diaz's appeal would be
inappropriate, and are denied.
Drs. Bradshaw and Williams also seek Rule 38 sanctions. This
court has noted that a frivolous appeal is one in which "the result
is obvious or the arguments of error are wholly without merit."
Buck v. United States, 967 F.2d 1060, 1062 (5th Cir.), cert.
denied, --- U.S. ----, 113 S.Ct. 1052, 122 L.Ed.2d 360 (1993)
(quoting Montgomery v. United States, 933 F.2d 348, 350 (5th
Cir.1991)). While we are not surprised that counsel for Drs.
Bradshaw and Williams contend that Ms. Diaz's appeal is "wholly
without merit," we find that Appellant's appeal is not so tenuous
and unrealistic to warrant this court to award Rule 38 sanctions,
and they are denied.
CONCLUSION
In sum, we hold that a loosely substantiated post-trial charge
of perjury is insufficient to form the basis of either a motion for
new trial or a motion for relief from judgment. Accordingly, we
AFFIRM the decision of the trial court.
12