United States Court of Appeals, Eleventh Circuit.
No. 94-4608.
Mariann PETERSON, as Guardian of Brian Peterson, Plaintiff-
Appellant-Cross-Appellee,
v.
Richard P. WILLIE, individually and as Sheriff of Palm Beach
County; Edwin E. Goodbread, Jr.; Earl S. Jackson; Palm Beach
County Board of County Commissioners; Burr Prentice; Gail Donald,
individually and as Doctors and Nurses employed by Correctional
Care, Incorporated and Emergency Medical Services Associates,
Incorporated, Defendants,
Correctional Care, Inc., a Florida Corporation and wholly-owned
subsidiary of Emergency Medical Services Associates, Inc., a
Florida Corporation; Emergency Medical Services Associates, Inc.,
a Florida Corporation; J. Clifford Findeiss, individually and as
president of Correctional Care, Inc. and Emergency Medical Services
Associates, Inc.; Lawrence Anthony, Dr.; Joyce Jopek-Peters,
R.N.; and Mary Ann Irwin, R.N., individually and as a Deputy
Sheriff and/or Corrections Officer of the Palm Beach Sheriff's
Office and as a nurse employed by Correctional Care, Incorporated
and Emergency Medical Services Associates, Incorporated,
Defendants-Appellees-Cross-Appellants.
April 25, 1996.
Appeals from the United States District Court for the Southern
District of Florida. (No. 90-8449Civ-JWK), James W. Kehoe, Judge.
Before COX, Circuit Judge, DYER, Senior Circuit Judge, and
GOETTEL*, Senior District Judge.
GOETTEL, Senior District Judge:
Plaintiff-appellant Brian Peterson ("Peterson") appeals from
judgment entered on a jury verdict in the Southern District of
Florida which did not find appellees Correctional Care, Inc.,
Emergency Medical Services Associates, Inc., J. Clifford Findeiss,
Mary Ann Irwin, Dr. Lawrence Anthony, and Joyce Jopek-Peters
(collectively "appellees") liable for injuries Peterson sustained
*
Honorable Gerard L. Goettel, Senior U.S. District Judge for
the Southern District of New York, sitting by designation.
while under appellees' care and supervision. Peterson argues that
the district court erred in allowing the appellees to present the
testimony of an expert witness who had been previously retained and
designated as a trial witness by Peterson's original counsel, but
later was discharged. Peterson also maintains that the district
court erred in allowing appellees to assert his continuing ability
to receive "free" medical benefits. Finally, Peterson contends
that the jury's verdict was contrary to the great weight of the
evidence, and that the district court erred in denying his motion
for a new trial.
Appellees cross appeal, asserting that the district court
erred in denying their motion for judgment as a matter of law
pursuant to Rule 50 of the Federal Rules of Civil Procedure.
Because we affirm the district court's judgment, we need not
address appellees' cross appeal.
I. FACTS AND PROCEEDINGS BELOW
Briefly stated, the facts are as follows. Brian Peterson was
a pretrial detainee at the Palm Beach County Stockade (the
"facility"). Correctional Care, Inc., a wholly owned subsidiary of
Emergency Medical Services Associates, Inc., was the provider of
medical care for inmates at the Palm Beach County jail facilities.
J. Clifford Findeiss was president of both corporations. The
remaining appellees, Joyce Jopek-Peters, Mary Ann Irwin, and Dr.
Lawrence Anthony were a doctor and the nurses who provided medical
services to inmates at the Palm Beach County Stockade.
While Peterson was a pretrial detainee, and had been at the
facility for about one month, he was assaulted by another inmate.
As a result of this incident, he sustained a brain stem injury
leaving him without the ability to walk, talk, or eat any food
through his mouth. He retains the ability to comprehend his
surroundings.
Peterson brought a § 1983 claim against appellees and several
other defendants1 alleging that their "deliberate indifference" in
providing necessary medical care and treatment constituted a
violation of his constitutional rights. See Rogers v. Evans, 792
F.2d 1052, 1058 (11th Cir.1986). The essence of Peterson's claim
was that, because of his medical condition and the appellee's
failure to provide him with appropriate medical care, he appeared
"retarded."2 Appearing retarded, Peterson claims that he was
subject to abuse from the general inmate population. One such
incident involved the assault which caused his injuries.
Peterson asserts that it was common knowledge among the
corrections and medical staff that anyone with a physical or mental
disability would be a target of abuse by other inmates. To protect
such inmates, it was the written policy of Correctional Care, Inc.
that the mental health services coordinator would be notified if an
1
Peterson settled with these other defendants prior to
trial.
2
At the time of his arrest, Peterson was suffering from
Wilson's Disease. While medication exists for this disease, he
had not been taking his medication regularly for a number of
years. As a result, he claims that he had slurred speech, facial
distortions, rigidity in his hands, and was slow in his
movements. He claims his physical disabilities were obvious to
anyone observing him. Appellees admit noticing Peterson's speech
impediment, but deny the apparent existence of any other
abnormalities. It is the alleged neglect of treatment for this
disease that Peterson alleges constitutes a violation of the
fifth, eighth, and fourteenth amendments to the United States
Constitution.
inmate was suspected of being mentally retarded or disabled. He
would then be evaluated and segregated if necessary. Peterson
argues that if he had been properly treated, he would not have been
the victim of the assault which caused his injuries.
After a 12 day trial, the jury returned a verdict in favor of
the appellees. (Since the jury found that the appellees were not
liable for Peterson's injuries, they did not return a verdict on
damages.) The trial court entered judgment on the jury verdict on
May 5, 1994 and denied Peterson's motion for a new trial.
II. DISCUSSION
Two of the three issues Peterson raises on appeal deal with
alleged errors at trial that relate to damages. First, he argues
that the district court erred in allowing the testimony of Dr.
Craig Lichtblau, an expert once retained by him but later
discharged. Second, Peterson argues that the district court erred
in allowing appellees to assert his continuing ability to receive
"free" government medical benefits.
In reviewing both rulings, we must determine whether the
district court abused its discretion. U.S. v. Hines, 955 F.2d
1449, 1454 (11th Cir.1992); Sheib v. Willaims-McWilliams Co.,
Inc., 628 F.2d 509, 511 (5th Cir.1980); Vanskike v. Union Pacific
R. Co., 725 F.2d 1146, 1149 (8th Cir.1984). If we find that the
district court erred, we must further determine whether the error
was harmless. "Errors in evidentiary rulings are not grounds for
reversal unless substantial prejudice results." King v. Gulf Oil
Co., 581 F.2d 1184, 1186 (5th Cir.1978); Fed.R.Civ.P. 61;
Fed.R.Evid. 103. Statements made in oral arguments must be plainly
unwarranted and clearly injurious to constitute reversible error.
Vanskike, 725 F.2d at 1149. While we find that the district court
erred, these errors do not mandate reversal.
Peterson's former attorney retained Dr. Lichtblau, a
psychiatrist, and designated him as an expert witness expected to
testify at trial pursuant to Federal Rule of Civil Procedure
26(b)(4)(A)(i). Shortly before his scheduled deposition noticed by
defendants and not objected to by Peterson, Dr. Lichtblau
reexamined Peterson, without Peterson's attorneys' instruction or
knowledge. Dr. Lichtblau then testified at the deposition that, as
a result of his second examination, his opinion concerning
3
Peterson's future placement had changed. Peterson's current
counsel subsequently withdrew the designation of Dr. Lichtblau as
a trial expert and filed a motion in limine seeking to preclude him
from testifying on behalf of the appellees. The district court
later overruled Peterson's objections, and permitted Dr. Lichtblau
to testify concerning his opinion as well as the fact that he had
been previously retained by an attorney representing Peterson.
Peterson argues that two possible reasons motivated appellees
calling Dr. Lichtblau. First, he argues that appellees sought to
"buttress" the testimony of one of their other expert witnesses.
As such, Peterson argues that Dr. Lichtblau's testimony was
improper as merely cumulative. Appellees, of course, disagree,
citing Dr. Lichtblau's superior knowledge of local facilities and
3
The central economic damage issue in this case was a
determination of the appropriate future medical care for
Peterson. Appellees sought to show that the county home where he
was currently living was satisfactory. Peterson argued that a
private facility was required to adequately meet his needs.
his observations of Peterson's condition several months prior to
their other expert's examination. We do not find that the district
court abused its discretion in finding that Dr. Lichtblau's
testimony was not merely duplicative and cumulative of appellees'
other expert.
Second, Peterson argues that appellees other possible reason
for calling Dr. Lichtblau was to inform the jury that Dr. Lichtblau
had been originally hired by Peterson's counsel, but had been
withdrawn when counsel disagreed with his opinion. Peterson argues
that "[t]he coupling of his opinion testimony with the testimony
that he had been hired by the Appellant, but was not utilized by
the Appellant, gave the jury the ... inference ... that something
was being hidden from them by Appellant's counsel." Reply Brief of
Appellant and Cross-Appellee's Response Brief, p. 2-3. We agree.
Several courts have noted the prejudice that results from
informing a jury that an expert had been originally consulted by
the opposing party. See, e.g., Healy v. Counts, 100 F.R.D. 493
(D.Colo.1984). In Granger v. Wisner, 134 Ariz. 377, 656 P.2d 1238,
1242 (1982), the court asserted:
Jurors unfamiliar with the role of counsel in adversary
proceedings might well assume that plaintiff's counsel had
suppressed evidence which he had an obligation to offer. Such
a reaction could destroy counsel's credibility in the eyes of
the jury.
In Rubel v. Eli Lilly and Company, 160 F.R.D. 458, 460
(S.D.N.Y.1995), the court, quoting 8 Charles A. Wright, Arthur R.
Miller & Richard L. Marcus, Federal Practice and Procedure: Civil
§ 2032, at 447 (1994), described this prejudicial fact as
"explosive."
Courts have differed in their approach to such situations.
Some have permitted a party to call a witness originally consulted
by the opposing party, but prohibited the party from offering
evidence that the witness had been previously consulted by the
opposing party. See, e.g., Granger, 656 P.2d 1238; Sun Charm
Ranch, Inc. v. City of Orlando, 407 So.2d 938 (Fla. 5th DCA, 1981).
This approach may inhibit adequate cross examination. See Granger,
656 P.2d at 1243, where the court noted, "[c]ross-examination is a
difficult art which is not made easier when counsel must perform it
on a tightrope." Other courts have refused to permit the expert to
testify at all absent a showing of need. See, e.g., Rubel, 160
F.R.D. 458. Relying on these cases, Peterson argues that, at the
very least, the district court erred in permitting the appellees to
elicit from Dr. Lichtblau the fact that he had been previously
retained by an attorney representing Peterson.
Appellees distinguish the above cases, arguing that none of
these cases dealt with expert witnesses expected to be called at
trial. Unlike the experts in the cases above who were merely
consulted in preparation for trial, Dr. Lichtblau was actually
designated as a Rule 26(b)(4)(A)(i) witness expected to testify at
trial. Appellees cite Broward County v. Cento, 611 So.2d 1339
(Fla. 4th DCA, 1993), in support of their position that this
difference is material.
While appellees are correct that the cases cited by Peterson
do not address this difference, we do not find this difference
controlling in all respects. Once a witness has been designated as
expected to testify at trial, there may be situations when the
witness should be permitted to testify for the opposing party.4 In
such situations, however, we believe that a party should not
generally be permitted to establish that the witness had been
previously retained by the opposing party. While there may be
5
situations where this fact should be disclosed to a jury, we
believe that the unfair prejudice resulting from disclosing this
fact usually outweighs any probative value. Here, we find that the
district court erred in permitting the appellees' counsel to elicit
the fact that Dr. Lichtblau had been previously retained by an
attorney representing Peterson.6
While recognizing this error, we do not find here that it
rises to the level of substantial prejudice mandating a reversal of
the district court's judgment. See U.S. v. Killough, 848 F.2d
1523, 1527 (11th Cir.1988). At trial, Peterson's counsel twice
4
This decision is committed to the sound discretion of the
district court. While it may generally be possible to permit a
party to call a witness without disclosing the fact of his or her
prior engagement by the opposing party, there may be little
reason to require this effort if other expert witnesses are
readily available. See Rubel, 160 F.R.D. at 461.
5
One such situation may be if on cross examination, the
party who had originally retained the witness seeks to attack the
expert's qualifications. In such a situation, a court may well
decide that the opposing party should be permitted to attempt to
rehabilitate the witness by eliciting testimony from the witness
that the party had thought highly enough of the witness to
consult him or her originally. See Granger, 656 P.2d at 1242, &
n. 4 (recognizing but not resolving this question).
6
On direct examination, appellees' counsel questioned Dr.
Lichtblau as to how it came about that he had evaluated Brian
Peterson. Dr. Lichtblau stated that he was hired by "an
attorney" who asked him to determine what the appropriate level
of care was for the patient. Appellees' counsel purposefully
elicited the fact that Dr. Lichtblau had been originally retained
by Peterson's counsel with his next question: "By an attorney
representing Mr. Peterson?" Dr. Lichtblau responded, "That is
correct." R 12-208.
informed the jury that Dr. Lichtblau had not been hired by them,
but rather by Peterson's former counsel. This somewhat neutralized
the possible prejudice caused by the disclosure of Dr. Lichtblau's
prior retention. Moreover, Dr. Lichtblau was essentially a damage
witness. Therefore, while we find error in the district court's
admission of evidence concerning Dr. Lichtblau's prior retention,
we hold that this error did not so prejudice Peterson's rights as
to mandate a reversal. U.S. v. Killough, 848 F.2d at 1527.
The evidence at trial supports the jury's verdict that
appellees were not liable for Peterson's injuries. The alleged
lack of care provided to Peterson's medical condition while at the
facility does not appear to rise to the level of "deliberate
indifference" necessary to constitute a violation of his
constitutional rights. See Murrell v. Bennett, 615 F.2d 306, 310
n. 4 (5th Cir.1980), stating that deliberate indifference exists
when "the questioned conduct is cruel and unusual because it
involves deliberate indifference, or something more than a medical
judgment call, an accident, or an inadvertent failure."
Peterson argues that the appellees' failure to properly treat
and classify him constitutes deliberate indifference to his
constitutional right to receive adequate medical treatment while
being incarcerated since, although Peterson informed appellees that
he had Wilson's Disease and requested medication, he was not
provided with it. The medication for Wilson's Disease, Cuprimine,
is a toxic drug which can be very dangerous if not appropriately
given. Testimony at trial supports the appellees' position that a
delay in giving the medication would not be dangerous, and that,
indeed, it would be prudent to check with a treating physician
before administering such medication. That is exactly what
occurred; after examining Peterson, Dr. Anthony instructed the
nursing personnel to obtain medical authorization for the release
of Peterson's treating neurologist's medical records. The facility
did not receive the records prior to Peterson's injuries.
In addition, the evidence supports a determination that any
deficiency in supplying medication was not the proximate cause of
Peterson's injuries. Peterson was assaulted by inmate Corey
Phoenix. The assault does not appear to have been caused by
Peterson's medical condition (appearing retarded because of his
slurred speech and drooling). Instead, the assault was caused by
7
a joke that got out of hand. Even if the assault was partially
motivated by Peterson's medical condition, evidence presented at
trial supports the appellees' contention that the administering of
the medicine would not have immediately changed Peterson's
appearance. Peterson's expert admitted that improvements in
neurological manifestations would not be observable for at least
six months following administration of the medication. Even if
Peterson had been immediately medicated upon admittance to the
7
Peterson and Phoenix shared bunk beds in their dormitory.
Phoenix testified that the two were friends, and that he liked to
play cards with Peterson. On June 14, 1987, Peterson, who slept
on the top bunk, was picking lint off a blanket and tossing it on
Phoenix's card game below. In retaliation, when Peterson got up
to get a drink of water, Phoenix took Peterson's blanket and
mattress off the bed and threw them out in the middle of the
aisle. When Peterson returned, he walked up to Phoenix and
Phoenix pushed Peterson. Peterson then charged Phoenix, and
Phoenix struck him. Peterson fell and hit his head on the
concrete floor. Phoenix testified that Peterson's abnormalities
had nothing to do with the altercation. He testified that it was
a joke that got carried too far.
facility, he would have still exhibited the symptoms which he
claims caused the assault a month later. The evidence, therefore,
establishes that any alleged lack of medical treatment was not the
proximate cause of Peterson's injuries.
Peterson also argues that he should have been segregated from
the general inmate population because of the risk that his symptoms
would lead to abuse. While there is dispute over exactly what
symptoms Peterson exhibited, the most obvious was his slowed,
slurred, and/or halting speech. Peterson's own correctional health
care expert agreed that this alone is not cause to segregate an
inmate from the general population. Peterson contends, however,
that other symptoms existed (facial distortions, rigidity in his
hands, and a general slowness in his movements) that cumulatively
were cause to segregate him. Appellees deny any notice of these
other symptoms. They note that no deputies or guards during
Peterson's thirty-four day stay at the facility reported seeing
these abnormalities or that he was the subject of taunting or
abuse. This evidence supports a determination that appellees'
failure to segregate Peterson does not rise to the level of
deliberate indifference to his constitutional rights.
Peterson further argues that the district court erred in
permitting appellees to assert his continuing ability to receive
government provided medical benefits at no cost to him.8 While the
parties discuss Florida's collateral source rule and its
8
Because we find that these misrepresentations were not
"clearly injurious," we need not address whether Peterson
adequately preserved this issue for appeal. See Vanskike, 725
F.2d at 1149.
application to the admission of this evidence, this is not a
collateral source issue. There is no dispute that the medical care
available to Florida's indigents is admissible.9
The dispute arises because of appellees' counsels' statements
to the jury that Peterson's future medical care would be "free" or
at "no cost" to him. At trial, Peterson did not seek damages for
past expenses (which had been provided by Medicaid), but rather
only for future expenses. Because of his pretrial settlement with
other defendants, he was no longer eligible for Medicaid benefits10
and his medical expenses would no longer be provided by Medicaid,
at no cost to him. Despite this fact, appellees' counsel several
times stated to the jury that Peterson's medical care was and would
be free to him.11
Appellees' counsels' attempt to justify these statements is
9
We have previously addressed Florida's exception to the
collateral source rule in a 1983 action in Carswell v. Bay
County, 854 F.2d 454 (11th Cir.1988). Under this exception,
"governmental or charitable benefits available to all citizens,
regardless of wealth or status, should be admissible for the jury
to consider in determining the reasonable cost of necessary
future care." Florida Physician's Insurance Reciprocal v.
Stanley, 452 So.2d 514, 515 (Fla.1984).
10
Prior to the trial, Peterson settled with several
defendants for $2.75 million. Medicaid benefits are only
available to those meeting the asset test set forth in 20 C.F.R.
§ 416.1205. As a result of the settlement, Peterson's assets
greatly exceeded the eligibility limits.
11
In appellees' opening statement at trial, attorney Bruce
M. Ramsey stated that Peterson's care in the county home "doesn't
cost him anything." R. 8-40. While questioning a witness,
appellees' attorney Hayward D. Gay referred to Peterson's
"so-called free care" in the county home. R. 11-100.
Additionally, in closing argument, Mr. Gay described Peterson's
medical care stating, "He doesn't pay a nickel. He never has and
he never will." R. 15-106. Referring to another facility where
Medicaid would be accepted, Mr. Gay stated that Peterson could
live there "at no cost to him or anybody else." Id.
unpersuasive. While they admit that the settlement would currently
deprive Peterson of Medicaid benefits, they argue that because his
projected future care costs greatly exceed the settlement funds, he
will be entitled to these benefits again in the future. Even if
this could occur, it does not excuse counsels' blanket statements
that Peterson will never be required to pay for his medical care.
We recognize the problem presented to appellees' trial
strategy by virtue of the settlement. Appellees were obviously not
permitted to inform the jury of the settlement. Additionally,
their strong argument—that certain damages need not be awarded to
Peterson because Medicaid benefits would provide for his medical
care—was no longer true. In such a situation, an appropriate
response would have been to seek an extension of time to prepare
another defense. It was not appropriate, however, to lie to the
jury.
Aware of the settlement and the falsity of their words,
appellees' counsel misinformed the jury that Peterson would not
have to pay for his continued medical care. We strongly disapprove
of this behavior. Reversal of the district court's judgment,
however, is not warranted. This error relates solely to the issue
of damages. The jury did not reach the issue of damages because it
found that the appellees were not liable for Peterson's injuries.
Recognizing this obstacle, Peterson argues:
The message was ... sent to the jury that Brian Peterson would
always be properly cared, for "free," and thus there was no
need to give an award against the Appellee for this aspect of
damages. Appellee's strategy thereby transcends the damage
issue and impacts (or "spills over") on the determination of
liability.
Initial Brief of Appellant, p. 24. We recognize that in some
situations, errors relating to damages may "spill over" into a
jury's determination of liability. See, e.g., City of Cleveland v.
Peter Kiewit Sons' Co., 624 F.2d 749, 759 (6th Cir.1980) (holding
that "since the jury was prejudiced with respect to its award of
damages, it cannot be said that its finding of liability was free
from prejudice."). Here, however, we find no evidence of "spill
over." Approximately half of the fifteen million dollars in
damages sought by Peterson at trial were for pain and suffering,
rather than future medical expenses. As appellees suggest, it is
unlikely that the jury was so misled by evidence of the
availability of free future medical care that it ignored Peterson's
equal claim for pain and suffering. Rather, the jury likely found
no deliberate indifference on behalf of appellees that was the
proximate cause of the damages suffered by Peterson.
Finally, we briefly address the district court's denial of
Peterson's motion for a new trial. We review the district court's
decision for abuse of discretion, see, Insurance Co. of North
America v. Valente, 933 F.2d 921, 922 (11th Cir.1991), mindful that
in order to:
assure that the judge does not simply substitute his judgment
for that of the jury, ... we have noted that new trials should
not be granted on evidentiary grounds unless, at a minimum,
the verdict is against the great—not merely the greater—weight
of the evidence.
Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir.1984)
(citations omitted). Peterson's argument that the verdict was
contrary to the great weight of the evidence fails to meet this
heavy burden. We find ample evidence in the record, during 12 days
of trial, to support the district court's denial of a motion for a
new trial. The district court did not abuse its discretions in
denying Peterson's motion.
III. CONCLUSION
For the above reasons, we AFFIRM the judgment of the United
States District Court for the Southern District of Florida.