Blake v. First Physicians Cor

United States Court of Appeals
For the First Circuit

No. 02-1810

WILLIAM J. BLAKE, ET AL.,
Plaintiffs, Appellants,

v.

MICHAEL PELLEGRINO, ET AL.,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Selya, Circuit Judge,

Stahl, Senior Circuit Judge,

and Lipez, Circuit Judge.

Philip N. Beauregard, with whom John A. Markey, Jr. and
Beauregard, Burke & Franco were on brief, for appellants.
Curtis Diedrich, with whom Alan B. Rindler, Nadine Nasser
Donovan, Rindler•Morgan, P.C., William J. Davenport, Richard M.
Haley, Bloom & Buell, Stacey Morris, and Sloane & Walsh, LLP were
on consolidated brief, for individual appellees.
J. Peter Kelley, with whom Martin C. Foster and Foster &
Eldridge were on brief, for appellee Southcoast Health Systems,
Inc., d/b/a Charlton Memorial Hospital.

May 15, 2003
 SELYA, Circuit Judge. This appeal requires us to explore

the limits of a trial judge's authority to remove a significant

piece of evidence from a jury's consideration based upon his belief

that the evidence lacks persuasive force.1 We conclude that, in

the circumstances of this case, the judge's actions invaded the

province of the jury. Because there is a reasonable likelihood

that the error influenced the eventual verdict, we vacate the

judgment as to the affected claims and remand the case for a new

trial.

I. BACKGROUND

On October 30, 1998, Betty Ann Blake, a profoundly

disabled woman in her mid-forties, was eating her mid-day meal at

a daycare facility. A piece of meat lodged in her throat. She was

taken to the emergency room at Charlton Memorial Hospital (the

Hospital) in Fall River, Massachusetts. Although laypersons

speculated that Betty Ann might be choking, she apparently refused

to open her mouth and the doctors on duty did not conduct a full

examination.

Betty Ann was admitted to the Hospital. The following

day, she had a seizure and began to display labored breathing. The

doctors performed an esophagoscopy. During the procedure, they

discovered a bolus of meat in Betty Ann's esophagus and dislodged

1
The district court used "persuasiveness" and "credibility" as
rough synonyms in connection with this ruling, and we too use those
terms as proxies for one another.

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it. Shortly thereafter, Betty Ann suffered a heart attack. She

died on November 1, 1998 (approximately twenty-four hours after

physicians removed the piece of meat from her esophagus). The

death certificate filed by the medical examiner listed

"complications of asphyxia by choking" as the cause of death.

Betty Ann's parents, William and Theresa Blake,

individually and as co-administrators of her estate, subsequently

sued the Hospital and a trio of physicians (Drs. Michael

Pellegrino, Miguel Brillantes, and Thomas Cahill). Their

complaint, filed in the federal district court, charged that the

defendants had negligently failed to diagnose Betty Ann's condition

and had discriminated against her in violation of Title III of the

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12181-12189,

and the Rehabilitation Act, 29 U.S.C. §§ 701-796l. In the course

of pretrial proceedings, the district court dismissed the ADA claim

and granted summary judgment for the physician-defendants on the

Rehabilitation Act claim. The plaintiffs have not appealed from

those orders.

The case went to trial on the remaining counts, which

included the Rehabilitation Act claim against the Hospital, see 29

U.S.C. § 794, and state-law claims, grounded in malpractice, for

wrongful death and negligent infliction of emotional distress

against the physicians. At the start of the trial, the physician-

defendants moved in limine to exclude the death certificate. The

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court ruled that the death certificate constituted admissible

evidence and denied the motion. The plaintiffs promptly introduced

it into evidence and published it to the jury. The court then

allowed the jurors to inspect copies of the death certificate.

On the fifteenth day of trial, the plaintiffs rested.

The physician-defendants moved, inter alia, to strike the listed

cause of death from the death certificate. The plaintiffs

objected. On the seventeenth day of trial — before the defendants

had presented any evidence — the district judge excised the words

"asphyxia by choking" from the death certificate, stating that he

had come to believe that Betty Ann's death was "not caused by

'complications of asphyxia by choking' as that phrase was

understood either by a layperson or by physicians."2

The trial lasted another three days. After final

arguments and the court's charge, the jury commenced its

deliberations. On November 26, 2001, the jury returned a verdict

for the Hospital on the Rehabilitation Act count but informed the

court that it had reached an impasse on the remaining claims. The

court gave the deadlocked jurors a modified Allen charge, see Allen

2
The physician-defendants argued — and the court apparently
came to believe — that Betty Ann experienced an aspiration, not
asphyxia by choking. By aspiration, the defendants meant "the
effects of saliva going down into the lungs . . . which can lead to
infection, fluid in the lungs, and then death if left untreated."
Br. of the Physician-Appellees at 23. This was a more likely cause
of death than asphyxia, they posited, inasmuch as Betty Ann "did
not suffer an obstruction of her airway at any time when she was in
the hospital." Id.

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v. United States, 164 U.S. 492, 501 (1896); United States v. Keene,

287 F.3d 229, 235 (1st Cir. 2002), and directed them to resume

deliberations. On November 27, the jury returned an across-the-

board verdict for the defendants.

The plaintiffs filed a timely motion for a new trial.

Fed. R. Civ. P. 59(a). As to the state-law claims, they argued

that the district court had erred in redacting the death

certificate, and, moreover, that the timing of the court's actions

— allowing them to introduce the unredacted death certificate,

publish it to the jury, and build their case around it, and then

striking the pivotal language — had doomed their chances of

prevailing. As to the Rehabilitation Act claim, the plaintiffs

sought a new trial based on the district court's exclusion of

medical records of non-disabled patients. The lower court took the

matter under advisement. It eventually denied the motion in a

written opinion. See Blake v. Southcoast Health Sys., Inc., 206 F.

Supp. 2d 174 (D. Mass. 2002). The court insisted that none of its

actions constituted error. Id. at 182. With admirable candor,

however, the court conceded that if it had erred in the mid-trial

redaction of the death certificate, its error was not harmless

(and, thus, would require a new trial). Id. at 177. This appeal

ensued.

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II. THE STATE-LAW CLAIMS

The issue that lies at the heart of this appeal relates

to the trial court's handling of an evidentiary matter. When an

issue as to the admission or exclusion of evidence involves a

question of law, such as the proper interpretation of a provision

contained in the Federal Rules of Evidence, we afford de novo

review. Crowley v. L.L. Bean, Inc., 303 F.3d 387, 394 (1st Cir.

2002). When, however, the issue involves an application of a given

rule of evidence to particular facts or a judgment call about, say,

relevancy, we review solely for abuse of discretion. Id.

Identifying the precise question at issue in this appeal

poses certain complications. These complications arise primarily

from the parties' disagreement about whether federal or state law

governs the admissibility vel non of the death certificate. The

plaintiffs argue that state law controls because, by statute in

Massachusetts, a party is entitled not only to introduce an

official death certificate but also to have it serve as prima facie

evidence of the cause of death. Mass. Gen. Laws ch. 46, § 19. In

the plaintiffs' view, the Federal Rules of Evidence "are not

intended to substitute for, or trump, a clear state substantive

right to have certain evidence admitted in a state tort death

claim." Br. of Appellants at 27. The defendants argue to the

contrary, asserting the primacy of the Federal Rules of Evidence.

See, e.g., Br. of Physician-Appellees at 25 ("The fact that a state

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statute also existed regarding the admissibility of the death

certificate [does] not trump the force of the Federal Rules of

Evidence."). Although this is an interesting pedagogical debate,

we do not resolve it here. Assuming arguendo that the Federal

Rules of Evidence govern — an assumption consistent with the

district court's position and optimally favorable to the defendants

— the district court's handling of the evidence, as we explain

below, does not pass muster.

A. The Error.

The fundamental question posed in this case implicates

the division of responsibility between judge and jury. It asks

whether a judge, presiding over a jury trial, may rule on the

admissibility of evidence based upon his view of the persuasiveness

of that evidence. In other words, may a trial judge refuse to

admit evidence simply because he does not believe the truth of the

proposition that the evidence asserts? In the circumstances of

this case, we answer that question in the negative.3

3
Of course, there are specific circumstances in which a trial
judge's view of the credibility of the evidence is an important
variable in the calculus of admissibility. The most obvious
example is in a so-called Daubert hearing. See Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579, 597 (1993) (explaining that "the
Rules of Evidence . . . assign to the trial judge the task of
ensuring that an expert's testimony . . . rests on a reliable
foundation"); see also United States v. Sebaggala, 256 F.3d 59, 65-
66 (1st Cir. 2001) (discussing a trial court's considerable
latitude in the admission and exclusion of expert testimony under
Fed. R. Evid. 702). The case at hand does not fit within any of
these exceptions.

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 The disputed evidence in this case — the cause of death

specified in the death certificate — was plainly relevant to the

issues before the court. See Fed. R. Evid. 401. Even so, a

district court has the authority to exclude relevant evidence for

various reasons. See, e.g., Fed. R. Evid. 403 (allowing the

exclusion of evidence if the court finds that its probative value

is substantially outweighed by its unfairly prejudicial effect, or

that the evidence would tend to confuse or mislead the jury). But

none of these mechanisms allows a trial judge to remove relevant

evidence from the jury's universe solely because he finds the

evidence unpersuasive. Perhaps more importantly, the trial judge

in this case did not invoke any of them. Indeed, the judge made it

very clear that persuasiveness (or the lack of it) was the

perceived problem. See Blake, 206 F. Supp. 2d at 177 (attributing

the decision to redact to the fact that "the Court was no longer

persuaded by the fair preponderance of the evidence that

'complications of asphyxia by choking' was the primary cause of

Betty Ann Blake's death"); id. at 176-77 ("As the trial progressed

. . . it became increasingly evident [to me] that, whatever had

caused the death of Betty Ann Blake after twenty-seven hours of

suffering, it was not 'complications of asphyxia by choking.'").

The question reduces, therefore, to whether, in the

absence of special circumstances, see supra note 3, a trial judge

has the authority to exclude evidence on the basis of his own

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belief as to the persuasiveness of that evidence. We conclude

that, in a jury trial, no such authority exists. After all, the

jury is the factfinder, and "the ultimate arbiter of the

persuasiveness of the proof must be the factfinder, not the

lawgiver." Greenburg v. P.R. Maritime Shipping Auth., 835 F.2d

932, 937 (1st Cir. 1987). This premise has gone unchanged over the

years. See, e.g., Gallick v. Baltimore & Ohio R.R. Co., 372 U.S.

108, 114-15 (1963); Tennant v. Peoria & Pekin Union Ry. Co., 321

U.S. 29, 35 (1944). "It is the jury, not the court, which is the

fact-finding body. It weighs the contradictory evidence and

inferences, judges the credibility of witnesses . . . and draws the

ultimate conclusions as to the facts." Boston & Me. R.R. v.

Cabana, 148 F.2d 150, 152 (1st Cir. 1945) (citing Tennant, 321 U.S.

at 35).

In arrogating unto itself the power to evaluate the

persuasiveness of the medical examiner's conclusion about the cause

of death, memorialized in the death certificate, the district court

adverted to Fed. R. Evid. 104(a) and Fed. R. Evid. 803(8) as the

wellsprings of its authority. Neither of these rules adequately

underpins the court's action.

Fed. R. Evid. 104(a) provides in pertinent part that

"[p]reliminary questions concerning . . . the admissibility of

evidence shall be determined by the court." This rule enables a

trial judge to decide whether foundational facts have been

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established (and, thus, whether particular pieces of evidence are

eligible for admission). See Sacramona v. Bridgestone/Firestone,

Inc., 106 F.3d 444, 446 (1st Cir. 1997). The trial court "act[s]

as a gatekeeper" when such issues arise. United States v.

Holmquist, 36 F.3d 154, 167 (1st Cir. 1994). "If the court

discerns enough support in the record to warrant a reasonable

person in determining that the evidence [could support that which

it sets out to support, then] the weight to be given to the

evidence is left to the jury." United States v. Paulino, 13 F.3d

20, 23 (1st Cir. 1994).

Rule 104(a) is inapposite here, for no foundational facts

were in issue. Virtually by definition, foundational facts are

those facts upon which the admissibility of evidence rests. See

United States v. Piper, 298 F.3d 47, 52 (1st Cir. 2002); Paulino,

13 F.3d at 23. Those facts include matters such as the genuineness

of a document or statement, the maker's personal knowledge, and the

like. See, e.g., Newton v. Ryder Transp. Servs., 206 F.3d 772, 775

(8th Cir. 2000); Ricketts v. City of Hartford, 74 F.3d 1397, 1410

(2d Cir. 1996); Onujiogu v. United States, 817 F.2d 3, 5 (1st Cir.

1987). In this instance, those facts (e.g., the authenticity of

the death certificate and the authority of the medical examiner to

sign it) were never in dispute. The district court's problem did

not go to any foundational fact, but, rather, to the very core of

the evidence: its persuasiveness. Where, as here, a piece of

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evidence rests upon a proper foundation, Rule 104(a) does not

permit a trial judge to usurp the jury's function and exclude the

evidence based on the judge's determination that it lacks

persuasive force.

The district court also suggested that Fed. R. Evid.

803(8) empowered it to redact the death certificate based on the

perceived lack of credibility. We do not agree. The rule provides

that public records are not excluded by the hearsay rule "unless

the sources of information or other circumstances indicate lack of

trustworthiness." Fed. R. Evid. 803(8). Trustworthiness in this

context refers to matters such as whether the evidence is self-

authenticating or contemporaneously compiled by a person of

adequate skill and experience. See Beech Aircraft Corp. v. Rainey,

488 U.S. 153, 167 n.11 (1988); FDIC v. Houde, 90 F.3d 600, 606 (1st

Cir. 1996); see also Fed. R. Evid. 803 advisory comm. notes to ¶

(8), subsection (c). As the district court's explication makes

plain, the court did not base its ruling on the manner in which the

death certificate was completed, the sources of information

utilized, the credentials of the person completing it, or how the

record was maintained. Instead, the court premised its ruling on

the substance of what the death certificate contained. This was

error: Rule 803(8) does not authorize a trial court to deem

evidence untrustworthy (and thus inadmissible) simply because the

court finds the gist of the evidence incredible or unpersuasive.

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 For these reasons, we conclude that the mid-trial

redaction of the death certificate, based on the district court's

assessment that it lacked credibility, constituted error.

B. Was the Error Harmless?

Our determination that the district court erred in

redacting the death certificate on the basis of a credibility

determination does not end our inquiry. That error necessitates a

new trial only if it affected the plaintiffs' substantial rights.

Fed. R. Civ. P. 61. The test for harmless error in this case

therefore depends on whether the erroneous exclusion of evidence

"result[ed] in actual prejudice because it had a substantial and

injurious effect or influence in determining the jury's verdict."

Ruiz-Troche v. Pepsi Cola Bottling Co., 161 F.3d 77, 87 (1st Cir.

1998) (citation omitted). Because this determination is context-

specific, Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 102 (1st

Cir. 1997), we can sustain the instant verdict only if we can say

with fair assurance, after whole-record review, that the lower

court's mid-trial redaction of the death certificate did not

substantially affect the jury's ultimate decision. See Kotteakos

v. United States, 328 U.S. 750, 765 (1946).

Applying this standard, we conclude that the error

requires vacation of the judgment on the state-law claims. We rest

this conclusion in substantial part on the district court's own

assessment of the situation. The court candidly described the

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essential role that the death certificate played in the plaintiffs'

presentation of their malpractice claims, calling the stricken

language "the centerpiece of the Blakes' theory." Blake, 206 F.

Supp. 2d at 176. The court went on to conclude that if its

redaction of the document entailed error, that error "was not

harmless." Id. at 177.

We do not take these conclusions lightly. Trials are, by

their nature, dynamic and highly nuanced affairs. The district

court had first-hand knowledge of the ebb and flow of the

proceedings — knowledge that cannot fully be replicated by reading

a cold appellate record. Consequently, we accord great respect to

its conclusion regarding the centrality of the redacted language.

See, e.g., United States v. Shay, 57 F.3d 126, 134 & n.7 (1st Cir.

1995). The court's appraisal of the effect of the redaction is

equally deserving of deference. See Long v. Cotrell, Inc., 265

F.3d 663, 667 (8th Cir. 2001) (noting that the trial court is in a

superior position to measure the effects of trial error); cf.

Whiting v. Westray, 294 F.3d 943, 944 (7th Cir. 2002) (deferring to

trial judge's determination of harmlessness of attorney misconduct

in ruling on motion for a new trial).

Here, moreover, the timing of the redaction — on the

seventeenth day of a twenty day trial and after the plaintiffs had

rested — magnifies the prejudice occasioned by the error. The

plaintiffs had gone out on a limb and built their case around the

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redacted language — a reasonable tactic, considering the district

court's denial of the defendants' motion in limine and its

unconditional admission of the death certificate into evidence.

The court then abruptly reversed direction and sawed the limb off

at the eleventh hour, bringing the plaintiffs' case down with it.

It is difficult to imagine a more prejudicial turn of events.4

To be sure, the district court attempted to ameliorate

the untoward effects of its about-face by instructing the jury not

to draw any conclusions based on the fact of the redaction. But

this is not a garden-variety instance of allowing a jury to see

tainted evidence and then excluding it. In the peculiar

circumstances of this case, we do not think that any curative

instruction would have sufficed.

The general rule is straightforward: courts "normally

presume that a jury will follow an instruction to disregard

inadmissible evidence inadvertently presented to it." Greer v.

Miller, 483 U.S. 756, 766 n.8 (1987). The exception to the general

rule is equally straightforward: the usual presumption does not

4
The district court might have mitigated the potential
prejudice had it taken a more cautious approach when considering
the motion in limine. For example, the court might have admitted
the evidence conditionally or withheld a ruling on the motion until
the case came into sharper focus. We hasten to add, however, that
we offer these suggestions principally for the guidance of other
courts in future cases — and we do so recognizing that hindsight is
always 20/20. "Trial judges, whose lot is often to make swift
battlefield decisions on tangled evidentiary matters, cannot be
expected to foretell the future with absolute accuracy." United
States v. Sepulveda, 15 F.3d 1161, 1184 (1st Cir. 1993).

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apply when there is an "overwhelming probability" that the

instruction will be ineffectual. Richardson v. Marsh, 481 U.S.

200, 208 (1987). Here, the likelihood is very great that the

removal of the evidence — what the district court termed "the

centerpiece" of the plaintiffs' case — was devastating. That is

enough to warrant a new trial. See Bruton v. United States, 391

U.S. 123, 135 (1968) (noting that "there are some contexts in which

the risk that the jury will not, or cannot, follow instructions is

so great, and the consequences of failure so vital to the [party

introducing the evidence], that the practical and human limitations

of the jury system cannot be ignored"); cf. Anderson v. Butler, 858

F.2d 16, 18 (1st Cir. 1988) (holding that when evidence is

promised, and then not received, jurors likely will draw a "heavy"

adverse inference from its non-appearance).

III. THE REHABILITATION ACT CLAIM

There is an additional matter that warrants our

attention. The jury found for the Hospital on the Rehabilitation

Act claim, and the notice of appeal also brings that aspect of the

judgment before us.

The Rehabilitation Act claim is structurally different

from the state-law malpractice claims, and the plaintiffs, on

appeal, have neither addressed any developed argumentation to this

aspect of the jury's verdict nor given any explanation as to how

the belated redaction of the death certificate prejudiced the

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presentation of their Rehabilitation Act claim. By the same token,

they have not pursued their claim of error in the exclusion of

relevant medical records. See supra.

It is a familiar rule in this circuit that when issues on

appeal are unaccompanied by some meaningful effort at developed

argumentation, they are deemed to have been abandoned. See, e.g.,

Ryan v. Royal Ins. Co., 916 F.2d 731, 734 (1st Cir. 1990); United

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). We therefore

affirm the judgment entered in favor of the Hospital on the

Rehabilitation Act claim.

To be sure, this removes from the framework of the case

the hook upon which federal jurisdiction originally hung and leaves

the district court, on remand, with only the state-law claims

against the physician-defendants. The district court nonetheless

has the option of retaining supplemental jurisdiction and

proceeding to retry the case. See Rodriguez v. Doral Mortgage

Corp., 57 F.3d 1168, 1177 (1st Cir. 1995) (holding that on remand

a district court has discretion, after assessing the totality of

the circumstances, to retain supplemental jurisdiction over state-

law claims "notwithstanding the . . . demise of all foundational

federal claims").

IV. CONCLUSION

We need go no further. We affirm the judgment in favor

of the Hospital on the Rehabilitation Act claim but vacate the

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judgment in favor of the physician-defendants on the state-law

claims and remand that aspect of the case for a new trial. By

redacting the operative cause of death language from the death

certificate on the ground that it lacked persuasive force, the

district court invaded the jury's province and thus exceeded the

scope of its discretion. Occurring, as it did, near the end of a

long trial, the probability is intolerably high that this error

unfairly caused the plaintiffs' trial strategy to boomerang and

contaminated the ensuing verdict on the state-law claims.

Let us be perfectly clear. We do not hold that the death

certificate must be admitted into evidence at a subsequent trial.

There may be grounds for its exclusion apart from the deficient

ground relied upon by the district court. See, e.g., Freeman v.

Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988) (discussing

trial courts' wide discretion in admitting or excluding evidence

under Fed. R. Evid. 403). That question is not before us, however,

and we express no opinion on it. After all, "when a trial court

erroneously excludes evidence, and the exclusion meets the standard

criteria of harmfulness, the harm is not cured by a mere

possibility that other appropriate grounds for exclusion of the

same evidence may later be found to exist." Ruiz-Troche, 161 F.3d

at 88.

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 The judgment in favor of Southcoast Health Systems, Inc.,

d/b/a Charlton Memorial Hospital is affirmed. The judgment in

favor of the physician-defendants is vacated and the case is

remanded for further proceedings consistent with this opinion.

Costs are awarded to the plaintiffs as against the physician-

defendants.

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