United States Court of Appeals
For the First Circuit
No. 01-2539
KATHERINE MACAULAY, ET AL.,
Plaintiffs, Appellants,
v.
PETER P. ANAS, M.D.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.
Andrew D. Swain, with whom Messa & Associates, P.C. was on
brief, for appellants.
Joseph L. Doherty, Jr., with whom Martin, Magnuson, McCarthy
& Kenney was on brief, for appellee.
February 28, 2003
SELYA, Circuit Judge. After undergoing an unsuccessful
surgical procedure, plaintiff-appellant Katherine Macaulay sued for
negligence.1 The case was tried to a jury, which returned a
verdict in favor of her surgeon, defendant-appellee Peter P. Anas.
Macaulay appeals, assigning error to the district court's actions
in (1) refusing to grant her eve-of-trial motion for a continuance,
(2) placing certain limitations on the testimony of her principal
expert witness, and (3) permitting cross-examination of her
treating physician with respect to matters touching upon the
standard of care. Concluding, as we do, that these claims of error
are without merit, we affirm.
I. BACKGROUND
We start by sketching a broad picture of the case. We
bring that picture into sharper focus by adding more specific facts
during our discussion of particular issues.
The appellant, like many other people, suffers from back
problems. In due course, she came under the care of Dr. Anas (a
well-known orthopedist). The physician recommended that she
undergo spinal fusion surgery, and the appellant acquiesced.
Dr. Anas performed the surgery on September 11, 1992, at
New England Baptist Hospital in Boston, Massachusetts. The
1
Macaulay's husband, Kenneth, and their three children also
sued. Since their claims are purely derivative, we treat the case
as if Katherine Macaulay was the sole plaintiff and appellant. Our
decision is, of course, binding on all parties.
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operation was not a success. When the Macaulay family moved to
Philadelphia, the appellant came under the care of a different
orthopedist, Dr. Todd Albert. On February 14, 1994, Dr. Albert
performed corrective spinal surgery.
Displeased by what had happened on Dr. Anas's watch, the
appellant brought a diversity action, 28 U.S.C. § 1332(a), in the
United States District Court for the District of Massachusetts.
She named as defendants Dr. Anas, the hospital,2 and AcroMed
Corporation (the manufacturer of the hardware used in the original
surgery). She alleged, inter alia, that Dr. Anas had been
negligent in using investigational bone screws, in improperly
positioning them during the operation, and in failing to remove
them afterwards.
Within a matter of weeks, the case was transferred, for
purposes of centralized pretrial proceedings, to the Eastern
District of Pennsylvania. See 28 U.S.C. § 1407 (describing
procedures applicable to multidistrict litigation). The transfer
was prompted by the pendency of hundreds of other cases involving
manufacturers of investigational medical hardware. See In re
Orthopedic Bone Screw Liab. Litig., 176 F.R.D. 158 (E.D. Pa. 1997).
When the claims against the manufacturers were resolved, the
2
On March 28, 2001, the parties filed a stipulation dismissing
with prejudice all claims against New England Baptist Hospital.
Accordingly, we make no further reference to the allegations
against that defendant.
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appellant's case was remitted to the District of Massachusetts. At
that point, AcroMed was no longer a defendant.
On August 15, 2000, the district court referred the case
to the Massachusetts Medical Malpractice Tribunal (the Tribunal).
See Mass. Gen. Laws ch. 231, § 60B. On March 15, 2001, the
Tribunal rendered a decision in favor of Dr. Anas, finding that the
appellant's case exemplified "an unfortunate medical result." The
appellant posted the $6,000 bond required in order to pursue her
claim against Dr. Anas in court. See id.
Meantime, the district court had been attempting to
compose a timeline leading to trial. The court initially scheduled
the trial to commence on November 6, 2000, but postponed it sine
die because the Tribunal had not yet acted. After March of 2001,
the district court set a number of putative trial dates, but
vacated all of them for one reason or another (in several instances
to accommodate the appellant's counsel). The court finally settled
upon a firm trial date of September 10, 2001, and rebuffed the
appellant's eleventh-hour efforts to vacate that assignment.
The trial went forward on September 10, but the
appellant's principal attorney, Joseph Messa, was not present.
Instead, one of Messa's associates, Andrew Swain, took the lead.
On September 24, 2001, the jury returned a defendant's verdict.
This timely appeal ensued.
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II. DISCUSSION
We divide our discussion of the issues into three
segments, corresponding to the appellant's assignments of error.
A. Refusal to Grant a Continuance.
The appellant calumnizes the district court for its
refusal to vacate the September 10 trial assignment, asserting that
the court's dogged insistence on going forward effectively deprived
her of counsel of her own choosing. In her view, Swain — a
relatively inexperienced associate — was no substitute for the
highly skilled advocate whom she had hired. She mentions
fleetingly a second reason why the district court should have
granted a continuance: her house had burned down approximately one
month before the trial date.
We review the district court's denial of a continuance
for abuse of discretion. United States v. Saccoccia, 58 F.3d 754,
770 (1st Cir. 1995); United States v. Devin, 918 F.2d 280, 291 (1st
Cir. 1990). We discern none here. After all, a party's right to
counsel of her choosing is not absolute, and courts are not
required either to wait endlessly for lawyers to make themselves
available or to conform their calendars to suit attorneys'
preferences. See, e.g., United States v. Woodward, 291 F.3d 95,
106 (1st Cir. 2002); United States v. Noah, 130 F.3d 490, 497 (1st
Cir. 1997).
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The record reflects that the trial court exhibited great
patience in endeavoring to accommodate the appellant's counsel.
The appellant requested no fewer than four trial continuances,
including requests made in March, May, and June of 2001 due to
conflicts with Messa's schedule. On each of these occasions, the
district court yielded to counsel's scheduling constraints and
delayed the trial. When all was said and done, these serial
continuances moved the scheduled start of trial to July 9, 2001.
On July 6, the court held a pretrial conference. With
the agreement of both parties, it vacated the July 9 trial
assignment. In an effort to accommodate the vacation schedules of
all concerned, the court proposed to start the trial on September
4, 2001. Messa asked for special consideration because he was
planning to return from vacation that day. The court then
suggested September 5, but Messa protested. The court yielded once
more; it acceded to Messa's importunings and set trial to commence
on September 10. But the court exacted a reciprocal commitment
from Messa. It fixed the September 10 trial date only after the
lawyer gave what was described as an "ironclad" guarantee that he
or someone from his office would be available to try the case that
day. On July 12, 2001, Messa confirmed that assurance in writing.
The English satirist, Jonathan Swift, wrote nearly three
centuries ago that "promises and pie crusts are made to be broken."
J. Swift, Polite Conversation (1738). So it was here. On August
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30, 2001, Messa wrote to the district court requesting yet another
continuance because he was to start a trial in Pennsylvania on
September 10 and neither the appellant nor his Pennsylvania client
would consent to having another lawyer appear. On September 4, the
district court rejected Messa's request. Noting that the appellant
previously had been granted multiple continuances, the court
declared: "I picked a date satisfactory to you and you guaranteed
me you would be available." Messa renewed his request, this time
mentioning that the Macaulays' family home had burned down several
weeks earlier. The court responded that it had selected the
September 10 date at Messa's urging, that it had blocked off three
weeks to accommodate the trial, and that it would not continue the
case. Messa essayed yet a third request, advising the court that
the appellant had threatened to sue Messa's firm if Swain tried the
case and lost. The court stood firm.
We descry no hint of error. District courts enjoy broad
discretion in administering their dockets. This discretion
encompasses the granting and denial of requests for continuances.
Saccoccia, 58 F.3d at 770. Mindful that the exigencies of managing
a heavy caseload are real, appellate review of the denial of a
motion to continue is highly deferential. An appellate court
"looks primarily to the persuasiveness of the trial court's reasons
for refusing the continuance and gives due regard not only to the
factors which inform that court's ruling but also to its superior
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point of vantage." United States v. Ottens, 74 F.3d 357, 360 (1st
Cir. 1996). The burden is on the movant to demonstrate that the
trial court, in refusing a continuance, "indulged in a serious
error of law or suffered a meaningful lapse of judgment, resulting
in substantial prejudice." Saccoccia, 58 F.3d at 770.
In sifting the record to determine whether this heavy
burden has been carried, an inquiring court must consider the
totality of the circumstances, including, in addition to the
trier's rationale for denying the motion, the reasons that the
movant contemporaneously advanced in support of her request for a
continuance, the history of the proceedings, the probable utility
of a continuance, the extent of inconvenience to others (e.g., the
court, the witnesses, and the opposing party) should a continuance
ensue, and the extent of any unfair prejudice to the movant should
a continuance be denied. See id.
Here, the hallmark of the district court's handling of
the case was patience, not hubris. Its stated rationale for
refusing a further continuance was entirely plausible. In
contrast, the appellant's claim of entitlement was weak, especially
since Messa knew about the conflicting Pennsylvania trial
assignment when he guaranteed that the appellant's case would go
forward on September 10. Moreover, the history of the litigation
buttresses the court's action. The court had been indulgent in
trying to work around Messa's hectic schedule. Having granted
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several continuances, the court was justified in drawing a line in
the sand. Even then, the court did not set the September 10 trial
date by fiat, but, rather, based it on Messa's unqualified
assurance of his availability. Both the court and the adverse
party relied on this assurance: the court had cleared its
calendar, the defendant-doctor had adjusted his workload, and the
defense had proceeded with its trial preparations on the reasonable
assumption that the case would go forward. It was the court's
prerogative — indeed, its duty — to weigh these facts in acting
upon the appellant's request for yet another continuance. See
Ottens, 74 F.3d at 360.
To say more on this point would be to paint the lily.
While we are sympathetic to the appellant's plight, parties are
bound by their attorneys' representations, see United States v.
Woburn City Ath. Club, 928 F.2d 1, 6 (1st Cir. 1991), and courts
are entitled to take those representations at face value. That
Messa chose to do a juggling act by committing himself to begin
trials in two different courts on the same date was regrettable —
but it was not the court's responsibility to extricate him from
this self-dug hole. Courts simply cannot afford to let lawyers'
schedules dominate the management of their dockets. Given the
totality of the circumstances, it was not an abuse of discretion
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for the district court to insist that the trial begin as
scheduled.3
B. Preclusion of Expert Testimony.
The appellant next strives to convince us that the
district court erred in precluding her expert witness, Dr. Robert
Dunn, from testifying that the surgery performed by Dr. Anas was
not medically indicated. We are not persuaded.
In order to place this assignment of error in
perspective, we first inspect the relevant provisions of the Civil
Rules. Under that regime:
Except as otherwise stipulated or directed by
the court, [a party's] disclosure shall, with
respect to a witness who is retained or
specially employed to provide expert testimony
in the case . . . , be accompanied by a
written report, prepared and signed by the
witness. The report shall contain a complete
statement of all opinions to be expressed and
the basis and reasons therefor . . . .
Fed. R. Civ. P. 26(a)(2)(B). Once such a disclosure is made, it
must be kept current. See Fed. R. Civ. P. 26(e)(1) (explicating
the duty to supplement discovery responses). Since an important
object of these rules is to avoid trial by ambush, the district
3
We see no need to deal at length with the house fire. In
relation to the request for a continuance, that was plainly an
afterthought. In all events, the appellant has not satisfactorily
explained how that incident rendered it infeasible for her to
proceed with the trial. We note, moreover, that the tenuous
linkage that the appellant offered between the house fire and her
need for a continuance went to damages (an issue that the jury
never reached), not to liability.
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court typically sets temporal parameters for the production of such
information. See, e.g., Fed. R. Civ. P. 16(b). Such a timetable
"promotes fairness both in the discovery process and at trial."
Thibeault v. Square D Co., 960 F.2d 239, 244 (1st Cir. 1992). When
a party fails to comply with this timetable, the district court has
the authority to impose a condign sanction (including the authority
to preclude late-disclosed expert testimony). Id. at 245.
Moving from the general to the particular, we trace the
chronology of pertinent events in this case. On March 21, 2000,
the district court entered an order establishing a discovery cut-
off date some six months in the future. The court subsequently
extended that date to October 27, 2000. At a status conference
held after the close of standard discovery, the court constructed
a staggered template for the exchange of expert witnesses' reports
and related depositions. The deadline for the appellant's
submission of reports was February 23, 2001.
Pursuant to this timetable, the appellant produced Dr.
Dunn's report on February 21, 2001. The report concluded that Dr.
Anas had improperly positioned the screws that he placed in the
appellant's spine and had compounded this negligence by not
removing the screws after it had become apparent that the appellant
was suffering significant nerve-root irritation. On March 7, the
parties filed a joint motion to vacate the extant March 19 trial
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assignment and reassign the case for trial on April 30, 2001.4 The
district court granted them half a loaf, shifting the trial date to
April 2, 2001.
On March 20, the parties took a videotaped deposition
from Dr. Albert (the appellant's treating physician). This
deposition was taken on the understanding that it would be used at
trial in lieu of live testimony by Dr. Albert. Eight days later —
and more than a month after the deadline had passed for submitting
her expert witnesses' reports — the appellant produced a
supplemental report from Dr. Dunn. In this report Dr. Dunn opined,
for the first time, that the surgery that had been performed was
not medically indicated.
The following day, the district court held a pretrial
conference. The defense complained about the appellant's attempted
injection of a new theory of liability well after the deadline had
passed for divulging her expert witnesses' reports. The district
court noted the imminence of trial and ruled that the parties were
bound by the tenor of the reports that had been submitted on or
before February 23. The court made an exception for certain
additional x-ray and CT films that the appellant had belatedly
4
There is some dispute as to whether both sides joined in the
motion or, alternatively, whether the continuance was requested by
the defense (because of the delayed production of records from the
appellant's treating physician) and not opposed by the appellant.
That dispute is immaterial for purposes of this appeal.
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produced,5 and, subsequently, reassigned the case for trial on May
7, 2001. Although the trial eventually was postponed until
September 10, 2001, the appellant never sought to revisit the
district court's preclusionary order.
This brings us to the standard of review. District
courts have available a range of sanctions for the untimely
production of discovery materials. In addressing such matters,
trial judges must work a complicated equation, balancing fairness
to the parties with the need to manage crowded dockets. Because
trial judges tend to have an intimate knowledge of the variables
that enter into the equation, see, e.g., Fashion House, Inc. v. K
Mart Corp., 892 F.2d 1076, 1082 (1st Cir. 1989) (explaining that,
"district judges . . . are, by and large, in a far better position
than appellate tribunals to determine the presence of misconduct
and to prescribe concinnous remedies"), appellate review of
sanctions orders is deferential. See Thibeault, 960 F.2d at 243-
44. It follows that when a party proffers expert testimony out of
time and the district court opts to preclude it, the question on
appeal is not whether we would have imposed the same sanction.
Rather, the question is whether the district court's action was so
wide of the mark as to constitute an abuse of discretion. Nat'l
5
The appellant does not argue that this exception threw the
court's order out of balance. In any event, since the delayed
production was attributable to the appellant, such an argument
would be insupportable.
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Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642 (1976)
(per curiam); Thibeault, 960 F.2d at 243.
In answering this question, the court of appeals must
consider a multiplicity of pertinent factors, including the history
of the litigation, the proponent's need for the challenged
evidence, the justification (if any) for the late disclosure, and
the opponent's ability to overcome its adverse effects. Thibeault,
960 F.2d at 244; Johnson v. H.K. Webster, Inc., 775 F.2d 1, 7-8 &
n.7 (1st Cir. 1985). Surprise and prejudice are important integers
in this calculus. Thibeault, 960 F.2d at 246; Johnson, 775 F.2d at
7 n.7. So too is an assessment of what the late disclosure
portends for the court's docket. Salgado v. Gen. Motors Corp., 150
F.3d 735, 742 (7th Cir. 1998).
In this instance, the appellant faces a steep, uphill
climb. The record shows beyond hope of contradiction that she had
ample time to conduct discovery and to submit her expert reports
within the period allotted by the district court.6 Yet, she did
not proffer the report limning the "unnecessary surgery" theory
until more than a month after the applicable deadline had expired.
6
The appellant filed her complaint on September 6, 1996.
Although the parties may have been somewhat limited in their
ability to conduct discovery during the period that this case was
involved in the multidistrict litigation process, they were
certainly in a position to begin accumulating their expert
testimony. That extended window of opportunity counsels
persuasively in support of the district court's preclusionary
order.
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Moreover, the neoteric theory was not based on any newly discovered
evidence, and the appellant has not advanced any real justification
for its tardy emergence. To compound these failings, discovery was
closed and trial was imminent at the time the supplemental report
surfaced. Consequently, had the district court allowed the late
submission, it would have had a Hobson's choice: either to force
the defense to trial without appropriate preparation (such as
targeted pretrial discovery) or to reopen discovery and vacate the
trial assignment. Under those circumstances, it is surpassingly
difficult to fault the court for refusing to overlook the discovery
violation.
In an effort to blur this compelling picture, the
appellant argues that the lower court should have permitted her to
proceed because the defense could not credibly claim to have been
surprised. This argument is little more than whistling past the
graveyard. A careful review of the record shows that, although the
"unnecessary surgery" theory arguably was covered by boilerplate
language in the original complaint, the appellant did not actively
pursue it at any time thereafter. The appellant's main theory of
negligence, all along, was that Dr. Anas had improperly positioned
the screws that he inserted into her spine, and, relatedly, had
failed to remove them after they caused nerve-root irritation. The
fact that the complaint peripherally addressed several other
possible theories of negligence did not excuse the appellant's
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breach of her obligation to disclose anticipated expert testimony
in a timely fashion. It is one thing to tick off a laundry list of
potential theories at the start of litigation. It is quite another
to develop the theories that actually will be prosecuted and keep
them in play. See, e.g., Torres-Rios v. LPS Labs., Inc., 152 F.3d
11, 16 (1st Cir. 1998) (refusing to entertain a claim that was
implicit in a complaint, but not developed in later proceedings).
This was clearly a new theory of liability.
The fact that the trial did not go forward until
September 10, 2001, is irrelevant to our analysis. When the
district court made its preclusionary ruling, trial was scheduled
to start on May 7. No one anticipated that it would be postponed.
And while this ensuing delay might have provided sufficient time
for the parties to address the new theory of liability, the
appellant did not ask the court to reconsider its ruling in light
of the extra time available. A party who has the opportunity to
ask the trial court for relief but fails to do so forfeits the
right to claim, on appeal, that the relief should have been
granted. See Anderson v. Beatrice Foods Co., 900 F.2d 388, 397
(1st Cir. 1990).
The bottom line is that the district court had a
substantial basis for finding unfair surprise. Moreover, on these
facts surprise and prejudice go hand in hand. Common sense
suggests that when a party makes a last-minute change that adds a
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new theory of liability, the opposing side is likely to suffer
undue prejudice. The case law reflects this understanding. E.g.,
Thibeault, 960 F.2d at 246-47. Here, the appellant introduced a
new theory of liability only days before the anticipated trial
date. Allowing her to pursue that theory would have placed an
untenable burden on the defense and, in the bargain, would have
contravened the spirit of the discovery rules. See United States
v. Procter & Gamble Co., 356 U.S. 677, 682 (1958) (explaining that
the purpose of pretrial discovery is to "make trial less a game of
blindman's buff and more a fair contest with the basic issues and
facts disclosed to the fullest practicable extent"). We conclude,
therefore, that the district court acted well within the encincture
of its discretion in ordering preclusion.
C. Cross-Examination.
The appellant asseverates that the district court abused
its discretion in allowing defense counsel to elicit standard of
care testimony during his cross-examination of Dr. Albert. In this
regard, the appellant posits that she did not identify Dr. Albert
as an expert witness who would offer standard of care testimony;
that permitting him to discuss the standard of care undermined the
physician-patient relationship; and that, in all events, the
testimony should have been excluded under Fed. R. Evid. 403.7 The
7
The rule provides in pertinent part:
Although relevant, evidence may be excluded if
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phrasing of this asseverational array distorts the real issue:
whether or not the disputed cross-examination went beyond the scope
of the witness's direct examination.
Dr. Albert testified by means of a videotaped deposition.
During direct examination by the appellant's counsel, he testified
that, in the course of spinal fusion surgery, screws are supposed
to be placed inside the pedicles of the patient's spine. He then
noted that several of the screws that Dr. Anas had inserted in the
appellant's spine were not entirely within the pedicles. In line
with this observation, he characterized the screws as
"malpositioned" or "misplaced."
On cross-examination, Dr. Albert elaborated upon these
statements. He reiterated that the screws were not located
entirely within the pedicles of the spine (and, thus, were
malpositioned or misplaced), but he then acknowledged that this
fact did not necessarily signify a deviation from the applicable
standard of care. In much the same vein, he said that, in
characterizing the screws as malpositioned or misplaced, he did not
mean to suggest that Dr. Anas had transgressed the standard of
its probative value is substantially
outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the
jury . . . .
Fed. R. Evid. 403.
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care. At trial, the district court admitted these elaborations
over the appellant's objections.
It is elementary that the scope of permissible cross-
examination is delimited by the scope of the witness's direct
examination. See Fed. R. Evid. 611(b); see also United States v.
Lara, 181 F.3d 183, 189 (1st Cir. 1999) (describing as "standard
fare" a cross-examiner's ability "to inquire into issues . . .
related to and made relevant by [direct examination]").
It is, of course, unrealistic to expect that direct
examination and cross-examination will be perfectly congruent.
See, e.g., Irons v. FBI, 880 F.2d 1446, 1462 (1st Cir. 1989) (en
banc) (noting, in dictum, that by testifying on direct examination,
witnesses may "expose themselves [on cross-examination] to a range
of questions which may go well beyond what the witness, or the
examiner on direct, chooses to present during the case in chief").
The latter need only be reasonably related to the former, and
matching the two requires the district court to make a series of
judgment calls. A district court's decision either to permit
questioning as falling within the scope of the direct or to exclude
it as falling outside that scope is evaluated for abuse of
discretion. Lara, 181 F.3d at 199; United States v. Smith, 145
F.3d 458, 462 (1st Cir. 1998). Under this standard, a decision
will be overturned only when the court misapprehends the applicable
law or commits a meaningful error in judgment. Anderson v.
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Cryovac, Inc., 862 F.2d 910, 923 (1st Cir. 1988). Even an
erroneous ruling will not justify upsetting a jury verdict unless
the error affects the aggrieved party's substantial rights. See
Fed. R. Civ. P. 61; Fed. R. Evid. 103.
Seen in this light, the pivotal question here is whether
the appellant's direct examination opened the door to the disputed
cross-examination. Although the appellant asserts that Dr. Albert
was strictly a fact witness, not an expert witness, her direct
examination did not hew to that line. In response to questions on
direct, Dr. Albert testified unequivocally that the screws used in
spinal fusion surgery should be placed within the boundary of the
pedicles. He then testified that several of the screws that Dr.
Anas had inserted in the appellant's spine were not so configured;
instead, they were malpositioned or misplaced. Although the
appellant labors to characterize these comments as statements of
fact, they bore directly on the standard of care required in the
course of performing spinal fusion surgery. The statements also
suggested (or, at least, supported a reasonable inference) that Dr.
Anas had violated this standard in fusing the appellant's spine.
The witness's use of terms such as "malpositioned" and "misplaced"
implied fault. See Oxford Engl. Dict. 1708 (compact ed. 1971)
(defining "malpositioned" as "wrongly or badly positioned"); id. at
1815 (defining "misplaced" as "put in a wrong place"). Thus, a
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reasonable jury easily could have construed Dr. Albert's statements
to mean that Dr. Anas had committed actionable malpractice.
The defense was not required to let this potentially
damaging inference hang in the air. The ground that is covered on
direct examination sets the boundaries of permissible cross-
examination. See Lara, 181 F.3d at 199; see also Fed. R. Evid.
611(b). Consequently, the cross-examiner had every right to probe
the meaning of the witness's statements in an effort to dispel any
intimation of negligence. In other words, by asking questions that
related both to the standard of care and to the breach of that
standard, the appellant effectively opened the door for the cross-
examiner to address and clarify those issues. See, e.g., United
States v. Fortes, 619 F.2d 108, 121 (1st Cir. 1980) (holding that
direct examination as to specific issues "opened the door to a full
and not just selective discussion of these matters" on cross-
examination).
Here, the cross-examiner merely walked through the open
door and had the witness explain what he meant. Cross-examiners
must be given reasonable latitude to delve into areas related to a
witness's direct examination, and that latitude was not exceeded in
this instance. Questions that serve primarily to clarify matters
raised on direct examination are, virtually by definition, within
the proper scope of cross-examination.
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There is one conceivable gray area. The cross-examiner
asked Dr. Albert about the reported percentage of screws that do
not end up entirely within the pedicles in operations performed by
experienced orthopedic surgeons throughout the United States. The
witness responded that the figure is "as high as 15 to 20 percent."
This general question arguably went too far. But even assuming
that it exceeded the scope of the direct examination — there are
arguments both ways and much leeway for the trier's judgment — any
error was harmless. The statistic, in and of itself, cuts both
ways, and, moreover, the same percentages were vouchsafed during
the trial, without objection, by expert witnesses for both sides.
The short of it, then, is that the district court's
admission of the testimony gleaned through Dr. Albert's cross-
examination did not constitute an abuse of discretion. That said,
the appellant's remaining objections need not detain us. The
argument that the cross-examination somehow infringed upon the
physician-patient relationship is jejune; it was the appellant,
after all, who sued for personal injuries and made Dr. Albert's
testimony a centerpiece of her case. As for the argument that the
questions and answers should have been excluded under Fed. R. Evid.
403, the question is one not merely of prejudice, but of unfair
prejudice. Onujiogu v. United States, 817 F.2d 3, 6 (1st Cir.
1987). The juxtaposition of the witness's direct testimony in the
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context of the case as a whole rendered the evidence gleaned
through cross-examination both probative and fair.
III. CONCLUSION
We need go no further.8 After scrutinizing the record,
we are fully persuaded that the district court handled the case
with consummate skill and patience. Because the appellant received
a fair trial, unblemished by discernible error, the jury verdict
must stand.
Affirmed.
8
The appellant briefed a fourth claim of error, namely, her
contention that the Tribunal's decision to require a bond was
mistaken. We do not reach this matter, however, since the
appellant conceded during oral argument that the point was material
only in the event of a remand.
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