Rubert-Torres v. Hospital San Pablo, Inc.

United States Court of Appeals
For the First Circuit
____________________

No. 98-2346

JOSEFINA RUBERT-TORRES,
IN REPRESENTATION OF HER MINOR DAUGHTER,
KIMAYRA CINTRON-RUBERT,
Plaintiffs, Appellants,

v.

HOSPITAL SAN PABLO, INC., ET AL.,
Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, Senior U.S. District Judge]

____________________

Before

Torruella, Chief Judge,

Wallace,* Senior Circuit Judge,

and Lynch, Circuit Judge.

_____________________

Kevin G. Little, with whom David Efron and Law Offices of David
Efron were on brief, for appellants.
Federico R. Ducoudray-Acevedo, with whom Law Offices Jiménez &
Santoni was on brief, for appellee Hospital San Pablo.
Elisa M. Figueroa-Báez, with whom Law Offices Sigrid López
González was on brief, for appellee Néstor Rivera-Cotté.

* Of the Ninth Circuit, sitting by designation.
____________________

March 6, 2000
____________________

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 WALLACE, Senior Circuit Judge. Josefina Rubert-Torres

appeals from the district court's summary judgment in favor of one

defendant and from the judgment entered upon a jury verdict for the

other defendant. The district court had jurisdiction pursuant to 28

U.S.C. § 1332, and we have jurisdiction over Rubert-Torres' timely

appeal pursuant to 28 U.S.C. § 1291. We affirm in part, reverse in

part, and remand for further proceedings.

I.

Rubert-Torres brought this medical malpractice action on

behalf of her daughter Kimayra Cintrón-Rubert, a 21 year-old woman with

cerebral palsy, against Dr. Néstor Rivera-Cotté, the doctor who

delivered Kimayra, and Hospital San Pablo (Hospital), where Kimayra was

born. Before trial, the district court entered summary judgment for

the Hospital. At trial, Rubert-Torres' theory, supported by an

obstetrical/gynecological (OB/GYN) expert and a neurological expert,

was that physician error during her pregnancy and delivery of Kimayra

caused Kimayra's disabilities. Dr. Rivera-Cotté's theory, supported by

his own OB/GYN, neurological, and genetics experts, was that Kimayra's

disabilities arose genetically. The jury returned a verdict for Dr.

Rivera-Cotté.

II.

Rubert-Torres first contends that the district court erred

in entering summary judgment sua sponte in favor of the Hospital. This

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argument is slightly misworded. The district court did not enter

summary judgment sua sponte; rather, it converted the Hospital's motion

for judgment on the pleadings, pursuant to Federal Rule of Civil

Procedure 12(c), into a motion for summary judgment because Rubert-

Torres attached an expert witness report to her opposition to the

motion to dismiss. We review whether the district court properly

converted a Rule 12 motion into a motion for summary judgment for abuse

of discretion. See Whiting v. Maiolini, 921 F.2d 5, 6 (1st Cir. 1990).

Significantly, Rubert-Torres only makes this procedural argument

against the entry of summary judgment; she does not contest the merits

of the district court's decision.

We first recite the relevant facts. Rubert-Torres filed the

complaint on July 14, 1996; the Hospital answered on October 7, 1996.

Discovery started, and two scheduling conferences were held, with all

parties represented, on November 26, 1996, and on April 30, 1997. At

the second conference, the Hospital requested that Rubert-Torres

support her allegations against it with specific facts, which she

failed to do. At that point, discovery was apparently well underway:

Rubert-Torres had received four expert witness reports and 20 years of

medical records, interrogatories had been filed, and depositions taken.

When Rubert-Torres failed to support her allegations against

the Hospital with specific facts, the Hospital filed a motion on May 7,

1997, for judgment on the pleadings, pursuant to Federal Rule of Civil

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Procedure 12(c). Rubert-Torres filed an opposition to the motion on

May 14, 1997, including with it an expert witness report derived from

discovery. On August 15, 1997, the district court, without previously

providing notice, converted the motion for judgment on the pleadings

into a motion for summary judgment, relied on the expert report, and

entered an order for summary judgment in favor of the Hospital.

Rule 12(c) provides, in part:

If, on a motion for judgment on the pleadings,
matters outside the pleadings are presented to
and not excluded by the court, the motion shall
be treated as one for summary judgment and
disposed of as provided in Rule 56, and all
parties shall be given reasonable opportunity to
present all material made pertinent to such a
motion by Rule 56.

Fed. R. Civ. P. 12(c). In this regard, the rule is identical to Rule

12(b)(6), see Collier v. City of Chicopee, 158 F.3d 601, 603 (1st Cir.

1998), and relevant Rule 12(b)(6) case law on conversion assists this

Rule 12(c) conversion case.

Conversion of a motion for judgment on the pleadings into one

for summary judgment should only occur after the parties have been

offered a "reasonable opportunity" to present pertinent summary

judgment materials. Fed. R. Civ. P. 12(c). Whether the parties had an

"opportunity to respond necessarily turns on the way in which the

particular case under consideration has unfolded." See Whiting, 921

F.2d at 6. Thus, we have disfavored conversion when (1) the motion

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comes quickly after the complaint was filed, (2) discovery is in its

infancy and the nonmovant is limited in obtaining and submitting

evidence to counter the motion, or (3) the nonmovant does not have

reasonable notice that a conversion might occur. See id. at 7.

In this case, however, these considerations are not present.

The Rule 12(c) motion came 10 months after the complaint -- and

subsequent to the Hospital's request that Rubert-Torres support her

allegations. There had been substantial discovery. Finally, Rubert-

Torres was on constructive notice that conversion could occur.

Explicit notice is not required. See Collier, 158 F.3d at 603; C.B.

Trucking, Inc. v. Waste Management, Inc., 137 F.3d 41, 43 (1st Cir.

1998). Rubert-Torres had constructive notice because she presented the

district court with additional materials in her opposition memorandum.

As we recently held, "a party receives constructive notice that the

court has been afforded the option of conversion . . . when . . . the

non-movant appends . . . materials [outside the pleadings] to [an]

opposition and urges the court's consideration of them." Collier, 158

F.3d at 603. When a plaintiff incorporates materials outside the

pleadings into an opposition to a Rule 12(c) motion, the plaintiff

"implicitly invite[s] conversion -- and a party who invites conversion

scarcely can be heard to complain when the trial court accepts the

invitation." Id.; see also Maruho Co., Ltd. v. Miles, Inc., 13 F.3d 6,

8 (1st Cir. 1993) (holding conversion proper when plaintiff presented

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information outside the pleadings to the district court in opposition

to a motion to dismiss).

Rubert-Torres argues that she did not invite the district

court to convert the Rule 12(c) motion into a summary judgment motion

because the attaching of the expert report was for the limited purpose

of indicating "that further details regarding her claim against

Hospital San Pablo had been provided in discovery." Her assertion is

a stretch. In her response to the Hospital's Rule 12(c) motion,

Rubert-Torres stated that the contentions in the motion were "more

properly framed as a motion for a more definite statement under Federal

Rule of Civil Procedure 12(e)," and that to "the extent that Hospital

San Pablo's motion is in effect a 12(e) motion, it has been mooted by

the provided report of plaintiff's obstetrical expert, Dr. Bernard

Nathanson." However, Rubert-Torres not only relied upon

Dr. Nathanson's report for the limited purpose of refuting the

Hospital's motion, to the extent that it was a 12(e) motion, she also

used it to argue the merits of the Rule 12(c) motion, stating: "The

departures from the applicable standard of care identified by Dr.

Nathanson show that Hospital San Pablo failed to comply with its legal

duties under Puerto Rico law." This statement directly responded to

the Hospital's contention that, pursuant to applicable law, it was not

liable for Kimayra's condition, and implicitly invited the district

court to consider the expert report for Rule 12(c) purposes.

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 It is true, as Rubert-Torres argues, that not every

attachment to a Rule 12(c) motion or opposition thereto requires

conversion into a motion for summary judgment. See Beddall v. State

Street Bank and Trust Co., 137 F.3d 12, 17 (1st Cir. 1998); Watterson

v. Page, 987 F.2d 1, 3 (1st Cir. 1993). However, in this situation,

Rubert-Torres invited the district court to consider Dr. Nathanson's

report in its ruling on the merits of the Rule 12(c) motion, and thus

invited the court to convert the Rule 12(c) motion into one for summary

judgment. See Collier, 158 F.3d at 603; Fed. R. Civ. P. 12(c). The

district court did not abuse its discretion when it accepted that

invitation.

III.

Rubert-Torres also raises numerous arguments in favor of a

new trial against Dr. Rivera-Cotté. We address two of those arguments

-- that Kimayra was improperly excluded from the courthouse, and that

she should have been allowed to appear for a physical demonstration

during questioning of an expert witness.

A.

Kimayra was present on the first day of trial and was briefly

introduced to the pool of potential jurors before jury selection. Her

attorney explained to the potential jurors that "she will not be with

us in the trial for obvious reasons for a lot of the trial, but she is

entitled to be here." He also explained that she would not be present

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during jury selection because she "was getting a little restless" at

the time and they did not want her "to disrupt the proceedings."

Shortly thereafter, the district court banned Kimayra from

the courtroom during opening statements. The record reflects that her

attorneys did not request, and the district court did not offer, a

reason for the decision. Then, apparently off the record in chambers,

the district court banned Kimayra not only from the courtroom, but from

the entire courthouse for the duration of trial.

Dr. Allan Hausknecht, a neurologist, testified for Rubert-

Torres. He stated that one possible cause of Kimayra's cerebral palsy

was a genetic factor; that there were about 20 or 30 different physical

characteristics that might show that Kimayra had genetic abnormalities;

that he physically examined her and looked for those characteristics in

her; and that he concluded, based upon her appearance, that her

cerebral palsy was not the result of a genetic abnormality. He stated

that he could demonstrate this if Kimayra were present -- otherwise it

would be hard to do so. Rubert-Torres asked the district court to

allow Kimayra into the courtroom briefly so that Dr. Hausknecht could

physically show the jury that Kimayra did not exhibit those

characteristics. The defense objected to Kimayra's presence in the

courtroom, and the district court, without explanation, sustained the

objection. Rubert-Torres's attorney attempted to continue asserting

his position, and the district court cut him off, saying "I said the

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objection is sustained." Shortly thereafter, out of the presence of

the jury, Rubert-Torres's attorney asked for reconsideration:

If I had -- if I -- Your Honor, before I move
into another area of the testimony, I just want
to reiterate that I think his merely verbal
testimony rather goes to characteristics that he
saw in Kimayra. To rule on the genetics problem,
is an extremely -- actually demonstrating those
with the girl, and I don't see any undue
prejudice in that.

After all, she is the plaintiff, and it is the
best way of making the testimony very clear, and
you know it's clearly probative. To the extent
that it might be prejudicial because the girl is
pitiful-looking, quite frankly -- but it's very
important to show that it's not a genetic
problem. That's the issue of this case.

And to the extent that we are not going to be
able to do that, I wanted to preserve my
objection for the record and actually to ask for
reconsideration of your decision.

The district court denied reconsideration without explanation, but

assured Rubert-Torres's attorney that his objection was "preserved for

the record."

Later in the trial, Dr. Rivera-Cotté's pediatric neurological

expert, Dr. Jesús Vélez-Borrás, also discussed the importance of

examining Kimayra's physical appearance to determine whether her

cerebral palsy was genetic in origin. Dr. Vélez-Borrás' testimony

contradicted that of Dr. Hausknecht: based upon his physical

examination of Kimayra, Dr. Vélez-Borrás concluded that her condition

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was genetic in nature. Dr. Aubrey Milunsky, a genetics expert who

testified for Dr. Rivera-Cotté, also partially based his conclusion

that Kimayra's cerebral palsy was genetic in origin on her physical

appearance.

B.

Rubert-Torres argues that the district court violated

Kimayra's due process rights when it barred Kimayra from the courtroom

and eventually from the courthouse entirely, and that it abused its

discretion in refusing, without explanation, to allow the neurological

demonstration requiring Kimayra's presence in the courtroom. There is

no dispute that Rubert-Torres preserved these issues in the district

court. We review the district court's decision to exclude Kimayra from

the courthouse for abuse of discretion. See González-Marín v.

Equitable Life Assurance Soc'y, 845 F.2d 1140, 1146 (1st Cir. 1988).

We also review evidentiary rulings, such as the district court's

decision to disallow Kimayra's presence in the courtroom for

evidentiary purposes, for abuse of discretion. See Lynch v. City of

Boston, 180 F.3d 1, 15 (1st Cir. 1999).

1.

We first examine the district court's decision to ban Kimayra

from the courthouse. Rubert-Torres relies heavily upon Helminski v.

Ayerst Lab., 766 F.2d 208 (6th Cir. 1985), which we cited with approval

in González-Marín, 845 F.2d at 1146. Helminski held that a court may

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"exclude the plaintiff or limit [her] presence" without denying due

process, 766 F.2d at 217, if her "mere presence . . . would render the

jury unable to arrive at an unbiased judgment concerning liability,"

id., and she cannot "understand the proceedings and aid counsel." Id.

at 218; González-Marín, 845 F.2d at 1146 ("We agree with the ruling of

the Helminski court that a trial court may decide to bar from the

courtroom a disabled plaintiff incapable of comprehending judicial

proceedings during the liability phase of a trial in order to prevent

prejudicing the jury."). This is so because, in that situation, the

court must balance the plaintiff's due process rights with the

defendant's right to an unbiased jury trial. See Helminski, 766 F.2d

at 217.

Helminski outlined steps a court could take to determine

whether the plaintiff could be excluded. In the usual case involving

a disabled plaintiff, both parties, before trial, should raise the

issue of prejudice of the jury, and the district court should hold an

evidentiary hearing at which it "observes the injured party." Id. At

the hearing, the defendant has the burden of persuasion to show that

the plaintiff should be excluded because his or her "mere presence will

prejudice the jury." Id. Only if the defendant persuades the district

court of jury prejudice should the court question whether the plaintiff

"can comprehend the proceedings and assist counsel in any meaningful

way." Id. at 218. A plaintiff may only be excluded from court if both

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her presence would prejudice the jury and she cannot understand counsel

and assist in the case. See id.

In this case, the district court apparently decided to

exclude Kimayra from the courthouse in a meeting with counsel in

chambers after trial had begun. No record of the discussion was made;

therefore, we cannot know what occurred. There is no record of an

evidentiary hearing. There is no indication whether the district court

considered Helminski, even though we stated our approval of it in

González-Marín. The court had observed Kimayra, but did not hold an

evidentiary hearing to determine prejudice of the jury. There is no

record that Rivera-Cotté, who sought Kimayra's exclusion at trial, was

required by the district court to bring forward evidence that Kimayra's

very presence would jeopardize his right to an unbiased jury trial.

The district court did not make findings of fact and conclusions of law

on the record as to jury prejudice, or as to the extent to which

Kimayra could comprehend and assist counsel at trial. We are thus left

to review the court's decisions in a vacuum, entirely unable to

determine the precise reasons why it banned Kimayra from the courtroom

and the courthouse.

Because of the lack of record, we are hesitant to address

this important due process issue, especially if there must be a new

trial on the second issue. We therefore turn to the evidentiary

question.

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 2.

Rubert-Torres contends there was reversible error in the

district court's refusal, after Dr. Rivera-Cotté's objection, to allow

Kimayra in the courtroom for the purpose of a physical demonstration

during Dr. Hausknecht's testimony. The court neither stated the

evidentiary rule upon which it relied, nor allowed argument on the

objection, nor made findings concerning the prejudicial versus

probative effect of the evidence. We can only assume that its decision

was based upon Federal Rule of Evidence 403, which excludes relevant

evidence because its prejudicial effect is substantially greater than

its probativeness.

We do not always require explicit findings on a Rule 403

decision, see Navarro de Cosme v. Hospital Pavía, 922 F.2d 926, 931

(1st Cir. 1991), although they would assist us in our review

obligation. See 2 Weinstein's Federal Evidence § 403.03, at 403-31 to

403-32 (2d ed. 1999) ("When a trial judge excludes evidence under Rule

403, the judge should make a clear statement of the reason for the

record . . . . [R]easoned explanations are the very essence of

judicial method.") (internal quotation omitted). In our review, we

give district courts "substantial deference" in Rule 403 decisions.

Espeaignnette v. Gene Tierney Co., Inc., 43 F.3d 1, 8 (1st Cir. 1994).

The question before us is whether the district court abused its

discretion in excluding the physical demonstration.

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 Clearly, the evidence was highly relevant. As has been

explained, experts for both Rubert-Torres and Dr. Rivera-Cotté relied

upon Kimayra's physical appearance to make expert conclusions. They

disagreed as to what they saw and the resultant conclusions differed.

While those experts were allowed to describe Kimayra's appearance for

the jury, the "clearest evidence" on her physical appearance would have

been for the jury to see her, which is usually favored over mere

description. 4 Wigmore on Evidence § 1158 (Chadbourn rev. 1972); see

also id. § 1151; Rich v. Ellerman & Bucknall S.S. Co., 278 F.2d 704,

708 (2d Cir. 1960) ("Limitation of proof of the nature of the injuries

to a description by a doctor was unduly restrictive. Autoptic

proference is always proper, unless reasons of policy apply to exclude

it."). Additionally, in this case, the evidence was fundamental to the

central issue in the case: causation. When proffered evidence relates

to the central issue in a case, it is a difficult matter indeed to show

that the prejudicial effect of that evidence substantially outweighs

its highly probative nature, as Rule 403 requires. See Espeaignnette,

43 F.3d at 8-9; Swajian v. General Motors Corp., 916 F.2d 31, 34-35

(1st Cir. 1990). We have no findings and no statement to explain the

district court's apparent disregard for this highly probative evidence

on the central issue at trial.

In addition, even assuming the jury view preference was

somewhat prejudicial, the district court could have used a less

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restrictive means to minimize the prejudice than entirely excluding

Kimayra from the courtroom. For instance, the court might have

considered limiting the amount of time she would be present before the

jury, allowing her to enter and exit the courtroom outside the jury's

presence, and giving limiting instructions -- all of which might

minimize prejudice without requiring exclusion. See González-Marín,

845 F.2d at 1146-47; Helminski, 766 F.2d at 217; 4 Wigmore on Evidence,

supra § 1158. Because the Federal Rules of Evidence favor the

admissibility of evidence, less intrusive measures to minimizing the

prejudicial effect of evidence are preferred to excluding evidence.

See 2 Weinstein's Federal Evidence, supra § 403.02[2][c].

Finally, we are concerned about the somewhat arbitrary nature

of the district court's Rule 403 ruling. We have reversed other Rule

403 exclusions when, as in this case, the evidentiary question is

complex and not self-evident, the district court ruled before allowing

a response to the objection, there were no findings on prejudice and

probativeness, and a "hair-trigger" decision was made. See United

States v. Brooks, 145 F.3d 446, 454-55 (1st Cir. 1998), citing In re

Paoli R.R. Yard PCB Litig., 916 F.2d 829, 836 (3d Cir. 1990) and United

States v. Roberts, 978 F.2d 17, 24-25 (1st Cir. 1992).

We conclude that this is one of those rare and

"extraordinarily compelling circumstances" in which we must "reverse a

district court's on-the-spot judgment concerning the relative weighing

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of probative value and unfair effect." Espeaignnette, 43 F.3d at 5.

We do not do so lightly, but because of the highly probative nature of

the jury view of Kimayra, the lack of use of less restrictive means of

eliminating the prejudicial effect of the evidence, and the "arbitrary

manner in which the judge proceeded [which] furnishes a complementary

reason, powerful in itself," Brooks, 145 F.3d at 455, we hold that the

district court abused its discretion in disallowing the demonstrative

evidence.

Of course, error in this evidentiary ruling does not require

reversal unless it is harmful. "Our [harmlessness] inquiry is whether

exclusion or admission of the evidence affected plaintiff's substantial

rights. The central question is whether this court can say with fair

assurance that the judgment was not substantially swayed by the error."

Lynch, 180 F.3d at 15. On such a central issue as causation, and in

the absence of specific findings of prejudice, it would be speculation

at best, much less with fair assurance, to say that the jury verdict

was unaffected by the error.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER

PROCEEDINGS.

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