Peterson v. Willie

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.