Wallace v. McGlothan

In the

United States Court of Appeals
For the Seventh Circuit

No. 07-4059

T RACEY W ALLACE and E RIC
W ALLACE,
Plaintiffs-Appellees,
v.

JONATHAN S. M C G LOTHAN,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. 05 C 262—Larry J. McKinney, Judge.

A RGUED S EPTEMBER 23, 2008—D ECIDED M AY 26, 2010

Before E ASTERBROOK, Chief Judge, and K ANNE and
T INDER, Circuit Judges.
T INDER, Circuit Judge. Dr. Jonathan S. McGlothan at-
tempted to correct Tracey Wallace’s vision problems
through eye surgery, but the procedure ended up causing
more harm than good. Tracey and Eric Wallace brought
a diversity suit against Dr. McGlothan for medical mal-
practice under Indiana law. After a trial on causation and
damages, the jury returned a verdict for the Wallaces
2 No. 07-4059

and awarded nearly $700,000 in damages. On appeal,
Dr. McGlothan challenges the sufficiency of the evidence.
We affirm.

I. Background
A. The LASIK Surgery and Follow-Up Treatment
Tracey decided to undergo surgery so that she would
no longer need to wear glasses or contact lenses, and she
hired Dr. McGlothan to perform the procedure. On the
patient history form that Tracey completed for
Dr. McGlothan, she stated that she had trouble reading fine
print and driving at night and in bright sunshine. On
April 25, 2002, Dr. McGlothan performed LASIK 1 surgery
on Tracey’s eyes to improve her vision. LASIK can correct
a person’s vision by changing the shape of the cornea.
During a LASIK procedure, a physician uses a mechanical
blade to cut a flap in the patient’s cornea (the person’s
eye is usually anesthetized). The physician then folds
the flap back and uses a computer-guided laser to vaporize
parts of the stroma, the central part of the cornea. The
flap is then laid back down, and after the cornea heals, the
patient should have better vision.
Dr. McGlothan started with Tracey’s right eye. After
he cut the flap, he noticed a “buttonhole flap,” a LASIK
complication that occurs when the mechanical blade

1
LASIK is short for “Laser-Assisted In Situ Keratomileusis.”
For more information about LASIK, see H OWARD V. G IMBEL &
E LLEN E. A NDERSON P ENNO , LASIK C OMPLICATIONS 3-9 (1999).
No. 07-4059 3

cuts the corneal flap too thin in one or more areas.2
Dr. McGlothan informed Tracey of the problem, checked
his equipment, and replaced the blade. He then proceeded
to the left eye. After he made the cut, though, he
again noticed that a buttonhole flap complication had
developed. He then stopped the surgery, replaced the
flaps, put bandage contact lenses in Tracey’s eyes, and sent
her home.
Tracey returned to Dr. McGlothan’s office for follow-up
on April 26 and 29. During that time, Tracey stayed at
home with the lights dimmed, shades drawn, and, occa-
sionally, sunglasses on. Her eyes were very sensitive to
light, and she described that they felt like they had sand
thrown in them.
On April 29, after her visit with Dr. McGlothan, Tracey
went to see another physician, Dr. Donald Conner, O.D.,
an optometrist. Before meeting Dr. Conner, Tracey filled
out a patient history form stating that she had been
“bothered by glare or reflection, particularly when driving
at night.” Dr. Conner examined Tracey and saw “aberra-
tions” in her corneas that were affecting her vision. He
recommended that she see Dr. Francis Price, M.D., an
ophthalmologist and cornea specialist, whom Tracey
visited the following day. Dr. Price also examined Tracey’s
corneas and saw the complications caused by the sur-
gery. He determined that her left eye was worse than her

2
For more on buttonhole flap complications in LASIK proce-
dures, see G IMBEL & P ENNO , supra, at 54-56.
4 No. 07-4059

right, and the next day, Dr. Price performed a non-inva-
sive, corrective procedure on Tracey’s left eye that in-
volved pulling back the flap created during the
surgery, smoothing it out, and laying it back down as
evenly as possible.3
Tracey continued to see Drs. Conner and Price regularly
for some time. Both doctors saw improvement in
Tracey’s corneas and vision, but they also observed
lingering problems. Tracey continually complained of
defects in her vision, such as ghosting (a form of double
vision), shadowing, and halos and glare around lights. By
mid-2003, scarring had developed on Tracey’s left cornea,
so Dr. Price performed a corrective laser procedure to
remove some of the scarring. After the treatment, he
again observed improvement. Tracey last saw Dr. Price
in June 2006 and Dr. Conner just before trial in 2007.
During those visits and up through trial, Tracey still
complained of ghosting, shadowing, halos, and glare
symptoms.

B. The Proceedings and Evidence Presented Below
In 2002, the Wallaces filed a proposed complaint with the
Indiana Department of Insurance and appeared before a
Medical Review Panel, pursuant to the Indiana Medical
Malpractice Act. The Panel concluded that Dr. McGlothan

3
This procedure is known as Photorefractive Keratectomy or
“PRK.” For more on the PRK procedure on a patient who
has had LASIK, see G IMBEL & P ENNO , supra, at 121-23.
No. 07-4059 5

did not act negligently when operating on Tracey’s right
eye but was negligent in operating on her left eye. In the
Panel’s view, Dr. McGlothan should not have proceeded to
perform surgery on Tracey’s left eye after the buttonhole
flap complication arose on the right eye.
The Wallaces then filed a diversity action in federal
district court in Indiana on November 1, 2005. Prior to trial,
the district court granted partial summary judgment for
both sides. Relying on the opinion of the Medical Review
Panel, the district court found that Dr. McGlothan was not
liable for any damage to Tracey’s right eye, but was
found to have breached the standard of care as to her left.
A jury trial was set to determine the amount of damages,
if any, that Dr. McGlothan caused to Tracey’s left eye.
At trial, the Wallaces argued that the LASIK complica-
tion injured Tracey’s left eye and permanently impaired
her vision. The jury heard testimony from several doctors,
including Drs. Conner and Price, in addition to both Tracey
and Eric Wallace. Dr. Conner testified that, on April 29,
2002, he observed “aberrations” and “waviness” in
Tracey’s corneas due to the surgical flap, and he described
his prognosis for Tracey as “poor.” Dr. Conner observed
that Tracey’s vision was “distorted,” which is a more
general name for the ghosting and glare symptoms, and he
explained that such symptoms are congruent with the
aberrations he saw in Tracey’s cornea. He also ex-
plained to the jury why these problems can be par-
ticularly severe in dim light, such as at night, and that he
had written a letter to Tracey’s employer recommending
that her hours be adjusted so she did not have to drive
after dark.
6 No. 07-4059

Dr. Conner observed “irregularities” in Tracey’s corneas
throughout his treatment of her. When asked whether
there had been any change in her condition from her
visit in November 2003 to his examination of her just
before trial in 2007, Dr. Conner testified: “I think it’s
become more stable. But the irregularities, the distortion,
the aberrations are still present; but they seem to have
stabilized.” He then said that he saw no change in the
extent of the aberrations that he observed in 2007 com-
pared with 2003.
Lastly, Dr. Conner testified to the healing propensities
of the cornea and his expectations for Tracey’s vision long-
term. He testified that, after an injury or surgery on the
cornea, a person’s vision will gradually heal, but will
normally not improve after six months to one year.
Dr. Conner stated that he could not foresee any further
improvement in Tracey’s vision, particularly in dim
light or driving situations.
The jury also heard testimony from Dr. Price, via deposi-
tion transcript. Dr. Price testified that he first saw Tracey
on April 30, 2002, and he described Tracey’s cornea as
“mangled and kind of cut up into little pieces.” Regarding
her prognosis, Dr. Price remarked that, “because of the
irregularities of the flap and the rest of the cornea, how it
all fit together, it’s just a very difficult problem to try to
remedy and fix.” Dr. Price explained that the best time to
repair irregularities in a corneal flap is at the time of
surgery, because the flap is easier to smooth out. After
surgery, folds and wrinkles in the flap are harder to
remove. He also testified that he believed the left cornea
No. 07-4059 7

sustained more damage than the right. Because the left flap
still contained wrinkles five days after the surgery,
Dr. Price recommended the “flap lift” procedure. On
May 1, he performed this procedure on the left eye and
discovered the cornea’s condition was worse than he
anticipated: “[I]t was one of the worst things I’ve ever
seen.”
Like Dr. Conner, Dr. Price testified to his observations
and treatment of Tracey over the next several months.
Her eye improved but the irregularities did not disap-
pear, and Tracey continually complained to Dr. Price of
ghosting and glare. Dr. Price explained that he anticipated
both of these symptoms, in addition to problems with
night driving, based on Tracey’s corneal irregularities
and scarring. He attempted to reduce these symptoms
through the scar-removal procedure. He noted, however,
that the procedure would likely lessen the density of the
scarring with time, but “the surface irregularity may not
be any better.”
Dr. Price also testified about his final examination of
Tracey in June 2006. He still observed some areas of
scarring and irregularity, and he noted that Tracey still
complained of ghosting and glare at night. As to whether
what he observed comported with Tracey’s symptoms,
he said they did in her right eye and did “to some degree”
in her left. He stated that Tracey will need ongoing care
for the gas-permeable contact lenses, which she must
now wear.
The jury then heard from the Wallaces. Tracey testified
that the symptoms of ghosting, shadowing, and glare
8 No. 07-4059

persist today, and that they are particularly acute at night.
Both Tracey and Eric testified that Tracey can no longer
drive at night.
On cross-examination, Dr. McGlothan’s counsel asked
Tracey about the patient history form she filled out in
Dr. Conner’s office. He asked whether her response on the
form pertained to conditions that pre-existed the LASIK
surgery, and she testified as follows:
Q: How did you know . . . that you were bothered
by glare or reflections, particularly when driving
at night, if you had been home with the shades
drawn all weekend long and pretty much ever
since you had this surgery?
A: I’ve always had problems with it, and it’s just
been aggravated since the surgery.
Q: So you’re telling us now, today, in October of
2007, that you’ve always had trouble with glare or
reflections, particularly when driving at night?
A: Yes, and the surgery has aggravated it.
Q: So now, in October of 2007, you’re telling us for
the first time that this is an aggravation of a condi-
tion you had before you ever had LASIK surgery?
A: It wasn’t as bad.
Finally, the defense put on two witnesses. Dr. Gary A.
Fitzgerald, M.D., Tracey’s family doctor, testified that
he began seeing Tracey for migraine headaches in 1998.
He said that Tracey had visited him in July 2001 and
told him that she had been in the emergency room for a
No. 07-4059 9

corneal abrasion. Dr. Fitzgerald testified that he exa-
mined her eyes and did not find any abrasion.
Dr. Maurice John, M.D., an ophthalmologist and the
defense’s expert witness, testified that he examined
Tracey in September 2004. Based on his observations,
Dr. John found little wrong with Tracey’s left eye. Yet
Tracey performed poorly on several vision tests in
which Dr. John anticipated that she would perform well.
Dr. John said that he had no medical explanation for
her performance and believed she was malingering.
However, Dr. John also testified that Tracey “may have a
little glare” and that he had given her a sample of prescrip-
tion eye drops to reduce night glare during the 2004 visit.
Lastly, he testified to the cornea’s healing propensities,
stating first that the cornea “wants to heal.” But he also
acknowledged that two-and-a-half years had passed since
the surgery and remarked, “I doubt that mother nature
is going to improve the situation much more.”

C. Dr. McGlothan’s Pre- and Post-Verdict Motions
At the close of the evidence, Dr. McGlothan moved for
judgment as a matter of law, arguing that the Wallaces
failed to prove that Tracey’s left-eye injuries were perma-
nent. The approved jury instructions permitted the jury
to consider whether the injury was temporary or perma-
nent as well as Tracey’s average life expectancy in deter-
mining damages. The court denied the motion and
gave the case to the jury.
The jury returned a verdict of $555,813.57 for Tracey
and $122,980.00 for Eric. After the verdict, Dr. McGlothan
10 No. 07-4059

renewed his motion for judgment as a matter of law
and also moved to amend the verdict and for a new trial.
In his renewed motion, Dr. McGlothan again argued that
the evidence was insufficient for the jury to conclude the
LASIK injury was permanent. Dr. McGlothan also dis-
cussed the alleged, undisclosed pre-existing condition,
but he did not request judgment in his favor on that
basis. The Wallaces did not object to Dr. McGlothan’s pre-
existing condition argument, and they fully addressed
that argument in their response to his renewed motion.
The court denied all of Dr. McGlothan’s motions and
entered judgment for the Wallaces.
Dr. McGlothan timely appealed on two grounds. First,
he contends that the district court erred when it denied
his motions for judgment as a matter of law. 4 Second, he
argues that he was denied a right to cross-examine the
Wallaces’ experts on the subject of Tracey’s pre-existing
condition and that the Wallaces committed discovery
violations when they failed to disclose that condition.

II. Dr. McGlothan’s Motions for Judgment
as a Matter of Law
We review de novo the district court’s denial of a motion
for judgment as a matter of law. Tammi v. Porsche Cars
N. Am., Inc., 536 F.3d 702, 707 (7th Cir. 2008). “Our inquiry
is limited to the question whether the evidence pre-
sented, combined with all reasonable inferences permissi-

4
Dr. McGlothan is not appealing the denial of his motions
for remittitur or for a new trial.
No. 07-4059 11

bly drawn therefrom, is sufficient to support the verdict
when viewed in the light most favorable to the party
against whom the motion is directed.” Id. (citation omit-
ted). Because federal jurisdiction in this case rests on
diversity, Indiana’s substantive law applies. Musser v.
Gentiva Health Servs., 356 F.3d 751, 754 (7th Cir. 2004).
This case presents a question of proximate cause as
it relates to a jury-determined damages award. Dr. Mc-
Glothan does not dispute that he acted negligently in
operating on Tracey’s left eye 5 but argues that the evi-
dence was insufficient for the jury to conclude that his
negligence was the proximate cause of a permanent injury.
Under Indiana law, the Wallaces were required to offer
expert testimony to show a permanent injury, but accord-
ing to Dr. McGlothan, the evidence failed to show that
Tracey’s LASIK injury was permanent; instead, it showed
that the injury had healed. Dr. McGlothan further argues
that the evidence revealed that Tracey had pre-existing
eye problems, so Indiana law required the Wallaces to
offer expert evidence proving that Dr. McGlothan “aggra-
vated” this pre-existing condition. Dr. McGlothan con-
tends that the Wallaces failed to carry this burden.

A. Preliminary Matters: Forfeiture and Governing Law
Before we reach the merits of Dr. McGlothan’s argu-
ments, two procedural matters loom. First, the Wallaces

5
It had been established on summary judgment that Dr.
McGlothan breached the standard of care with respect to
Tracey’s left eye.
12 No. 07-4059

contend that, by failing to raise it in his pre-verdict motion
for judgment as a matter of law, Dr. McGlothan forfeited
his argument on the Indiana requirement of expert evi-
dence to prove aggravation of a pre-existing condition.
Dr. McGlothan admits he made this error but counters
that the Wallaces failed to object to his including the pre-
existing injury argument in his renewed motion for
judgment as a matter of law.
The ordinary rule is that the party seeking a pre-verdict
judgment as a matter of law must “articulate the basis
necessary on which a judgment as a matter of law might
be rendered.” Fed. R. Civ. P. 50(a)(2) committee note
(1991 amend.). If the court denies the motion, then after
the verdict, the party may renew its earlier motion. Fed. R.
Civ. P. 50(b). “Because the Rule 50(b) motion is only a
renewal of the preverdict motion, it can be granted only
on grounds advanced in the preverdict motion.” Id. com-
mittee note (2006 amend.); see also Unitherm Food Sys., Inc.
v. Swift-Ekrich, Inc., 546 U.S. 394, 404-05 (2006) (finding
forfeiture of a claim not presented in either the Rule 50(a)
or Rule 50(b) motion). Thus, if a party raises a new argu-
ment in its Rule 50(b) motion that was not presented in
the Rule 50(a) motion, the non-moving party can properly
object.
At trial, Dr. McGlothan moved for judgment as a
matter of law under Rule 50(a), arguing that the Wallaces
failed to prove permanence, but he did not discuss pre-
existing conditions. After the verdict, Dr. McGlothan
renewed his pre-verdict motion, via Rule 50(b). This time,
he still principally argued that he should win on the
No. 07-4059 13

permanence issue, but he also mentioned the alleged pre-
existing injury and contended that the Wallaces needed to
prove aggravation. This argument was too late; the
Wallaces could have objected to this new pre-existing
condition argument in the Rule 50(b) motion.
But they didn’t object. Instead, they responded to
Dr. McGlothan’s pre-existing condition argument, as well
as his permanence argument, on the merits. (Pl. Resp. Def.
Post-Trial Mot. 7-8.) A plaintiff’s challenge to a defendant’s
failure to adhere to the procedural prerequisites of
Rule 50(a) and (b) is waivable. Collins v. Illinois, 830 F.2d
692, 698 (7th Cir. 1987). To properly preserve this challenge
for appeal, the plaintiff must have objected when the
defendant made his post-verdict motion. Because the
Wallaces waited until this appeal to point out
Dr. McGlothan’s failure to raise the pre-existing injury
argument in his Rule 50(a) motion, they have waived
their waiver argument.
The second procedural matter is whether, in this diver-
sity suit, the Indiana rules on expert testimony relied on
by Dr. McGlothan even apply. Under the doctrine of
Erie R.R. v. Tompkins, 304 U.S. 64 (1938), a federal court
sitting in diversity is bound by state substantive law but
applies its own procedural rules. Musser, 356 F.3d at 754.
The parties in this case apparently have assumed that the
Indiana evidentiary rules raised by Dr. McGlothan are
substantive, as their briefs do not mention any potential
Erie problem. We agree with the parties’ assumption
but think some additional discussion is warranted.
Dr. McGlothan cites Indiana doctrines requiring expert
evidence to prove causation in particular types of medical
14 No. 07-4059

negligence claims, those involving a permanent injury
and/or the aggravation of a pre-existing condition. Since
these rules are unique to a discrete area of Indiana tort law
and go to the proof required for the causation element of
medical negligence, they are properly characterized as
substantive. See Murrey v. United States, 73 F.3d 1448, 1456
(7th Cir. 1996) (commenting that the Illinois requirement of
expert testimony in certain medical malpractice cases is
substantive). These Indiana rules are distinct from other
evidentiary matters that fall on the procedural side of the
Erie divide, such as the standards for admitting expert
evidence or evaluating the sufficiency of that evidence. See
Maroules v. Jumbo, Inc., 452 F.3d 639, 645 (7th Cir. 2006)
(clarifying that Indiana substantive law governed the use
of expert testimony in a “res ipsa loquitur” negligence case
but federal law provided the standard for summary
judgment); Stutzman v. CRST, Inc., 997 F.2d 291, 295 (7th
Cir. 1993) (holding that the admissibility of expert testi-
mony to prove an Indiana medical negligence case was
a procedural matter governed by federal law).
We acknowledge that Gil v. Reed, 381 F.3d 649, 659
(7th Cir. 2004)—in which we expressed doubt that the
Wisconsin requirement of expert testimony for certain
medical malpractice claims was substantive—might sug-
gest a different conclusion. In Gil, though, we did not have
to decide the Erie issue because the plaintiff’s expert evi-
dence was sufficient under either a state or federal stan-
dard. Id. at 659-60. Moreover, the Wisconsin rule addressed
in Gil, which established a broad preference for expert
testimony to show negligence by a doctor, id. at 659, is
distinct from the Indiana rules relevant to this case, in
No. 07-4059 15

which negligence is not at issue. Dr. McGlothan does not
dispute that he acted negligently in operating on Tracey’s
left eye but argues that, under Indiana law on the proof
required to show causation, the Wallaces failed to prove
their claim with the requisite expert evidence.

B. Sufficiency of the Evidence on Proximate Cause
We move to the merits of Dr. McGlothan’s sufficiency
of the evidence challenge. A negligence case in Indiana
consists of three elements: (1) a duty to the plaintiff by
the defendant, (2) a breach of that duty by the defendant,
and (3) an injury to the plaintiff proximately caused by
that breach. Topp v. Leffers, 838 N.E.2d 1027, 1032 (Ind. Ct.
App. 2005). In this case, the first two elements were
established on summary judgment. The trial concerned the
third. To prove proximate cause, the plaintiff must show “a
reasonable connection between a defendant’s conduct and
the damages which a plaintiff has suffered.” Id. (citing
Daub v. Daub, 629 N.E.2d 873, 877 (Ind. Ct. App. 1994)).
Dr. McGlothan argues that Indiana law requires expert
testimony to prove causation in this case. In Indiana, ex-
pert testimony is usually required in medical malpractice
cases involving issues of permanence and pre-existing
injury: “ ‘[T]he question of the causal connection between
a permanent condition, an injury, and a pre-existing
affliction or condition is a complicated medical ques-
tion . . . . When the issue of cause is not within the under-
standing of a lay person, testimony of an expert witness
on the issue is necessary.’ ” Id. (quoting Daub, 629 N.E.2d
at 877) (internal citations omitted).
16 No. 07-4059

However, expert testimony is not required in every
personal injury case, even when proximate cause is at
issue. Smith v. Beaty, 639 N.E.2d 1029, 1034 (Ind. Ct. App.
1994). “Causation may be proven by circumstantial evi-
dence if the evidence has sufficient probative force to
constitute a basis for a legal inference rather than mere
speculation.” Id. In this sense, expert testimony is
not required when “the issue of causation is within the
understanding of a lay person.” Id. Expert testimony that
might be insufficient on its own can become sufficient
when combined with other evidence. Indeed, expert
testimony that “something is ‘possible’ or ‘could have
been’ may be sufficient to sustain a verdict or award when
rendered in conjunction with other, probative evidence
establishing the material factual question to be proved.”
Roberson v. Hicks, 694 N.E.2d 1161, 1163 (Ind. Ct. App. 1998)
(quotation omitted). Additionally, when the plaintiff’s
complained-of injury is objective in nature, the plaintiff
may testify as to her injury, and “such testimony may be
sufficient for the jury to render a verdict without expert
medical testimony.” Topp, 838 N.E.2d at 1032 (quotation
omitted). An “objective injury” is one that “can be dis-
covered through a reproducible physical exam or diagnos-
tic studies that are independent of the patient telling
you what they feel or where they feel it.” Id. at 1033
(quotation omitted).
Dr. McGlothan raises a host of arguments related to
these Indiana requirements of expert testimony. He con-
tends that the Wallaces failed to offer expert testi-
mony showing that Tracey’s left-eye injury was per-
manent and not merely caused by a pre-existing condi-
tion. Dr. McGlothan also points out that, even if expert
No. 07-4059 17

evidence showed that the LASIK surgery caused Tracey
permanent vision problems, it did not show whether
the left eye (the only one damaged by Dr. McGlothan’s
negligence), the right eye, or both contributed to those
problems. Finally, Dr. McGlothan argues that the only
expert opinions that might support the Wallaces’ claim—
the conclusions of Drs. Price and Conner 6 —were too
unreliable to be admitted as expert testimony.
Beginning with Dr. McGlothan’s challenge to Drs. Price’s
and Conner’s testimony, he argues that their testimony

6
In his Reply Brief, Dr. McGlothan argues that Dr. Conner is
not qualified to render opinions about causation or permanence
of Tracey’s visual symptoms. (Appellant’s Reply Br. 2.) He
points out that Dr. Conner testified as one of Tracey’s treating
physicians, not specifically as an expert, and that Dr. Conner
said the treatment of such complications was beyond his realm
of expertise. However, in his Opening Brief, Dr. McGlothan
specifically states that he “is not questioning the qualifications
of either Dr. Conner or Dr. Price to testify as to the alleged
damages Tracey Wallace experienced.” (Appellant’s Opening
Br. 35.) Dr. McGlothan referred to Dr. Conner as an expert
throughout his opening brief, and at oral argument,
Dr. McGlothan’s counsel conceded that Dr. Conner “had
something expertwise to offer.”
Dr. McGlothan does not appeal any evidentiary rulings with
regard to the admissibility of Dr. Conner’s testimony, outside of
those discussed below. As such, any objection to the admissibil-
ity of Dr. Conner’s testimony based on his qualifications is
waived. Duncan v. Wis. Dep’t of Health & Family Servs., 166 F.3d
930, 934 (7th Cir. 1999) (holding that arguments not developed
in the appellate brief will be deemed waived or abandoned).
18 No. 07-4059

was unreliable because the doctors did not consider
Tracey’s alleged pre-existing condition. See Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). Tracey
admitted that she was “bothered by glare or reflection”
prior to the LASIK surgery, but neither Dr. Price nor
Dr. Conner considered that fact when offering their
opinions. According to Dr. McGlothan, Drs. Price and
Conner were required to consider Tracey’s pre-existing
condition in order to offer a reliable, expert opinion.
But Dr. McGlothan never objected to either doctor’s
testimony or moved to strike on these grounds at trial,
not even after his cross-examination of Tracey, during
which, he contends, he learned of the pre-existing condi-
tion. Therefore, this issue was forfeited, and we can only
review for plain error. Estate of Moreland v. Dieter,
395 F.3d 747, 756 (7th Cir. 2005). “Plain error review of a
forfeited evidentiary issue in a civil case is available only
under extraordinary circumstances when the party
seeking review can demonstrate that: (1) exceptional
circumstances exist; (2) substantial rights are affected;
and (3) a miscarriage of justice will occur if plain error
review is not applied.” Id. Dr. McGlothan does not
address plain error in his brief, but even if he did, he
would not prevail. Extraordinary circumstances do not
exist, because, as discussed below, the evidence was far
from conclusive that Tracey in fact had a pre-existing
condition. As such, the district court did not plainly err
when it admitted Drs. Price’s and Conner’s testimony.
Next, Dr. McGlothan argues that, even if admissible,
the expert evidence was insufficient to show that
No. 07-4059 19

Dr. McGlothan’s negligence caused an injury to Tracey’s
left eye that was permanent, as required by Indiana law.
We disagree. The testimony of Drs. Price, Conner, and
John was more than sufficient for the jury to find a perma-
nent injury.
Dr. Conner testified that, following the LASIK surgery,
he observed “aberrations” and “waviness” in Tracey’s
left cornea and “distortion” in her vision. He described
her prognosis as “poor.” Dr. Price, the cornea specialist
who saw Tracey five days after the surgery, said he
had “never seen a flap that was just so mangled and kind
of cut up into multiple pieces” and that “because of the
irregularities of the flap and the rest of the cornea, how it
all fit together, it’s just a very difficult problem to try to
remedy and fix.” Dr. Price described why Tracey’s cornea
would be difficult to repair. He stated that the most
opportune moment to smooth a corneal flap is at the
time of surgery, just after the flap is created. If wrinkles
and folds remain in the flap after that time, they can
become harder to remove. Dr. Price observed wrinkles
in Tracey’s left cornea, even though he saw Tracey five
days after Dr. McGlothan cut the flap and attempted
to replace it. Tracey’s condition required Dr. Price to
relift the corneal flap, smooth it, and lay it back down.
The evidence showed that over time Tracey’s cornea
did heal somewhat, which was consistent with
Dr. Conner’s discussion of the healing process. However,
as both Dr. Conner and Dr. John stated, corneal injuries
do not continue to heal forever. Dr. Conner estimated the
healing stops after six months to one year, and Dr. John
20 No. 07-4059

testified that, two-and-a-half years after the surgery, he
doubted if there would be any further improvement
in Tracey’s vision. Dr. Conner also testified repeatedly
that he could not foresee any further improvement in
Tracey’s vision, particularly regarding her problems in
“dim light or driving situations.” Dr. Price testified that,
even after the scar removal procedure he performed to
aid the healing process, “the surface irregularity may
not be any better.”
Indeed, the jury heard that, even after several years, the
irregularities and aberrations remained, as did Tracey’s
symptoms. As of November 2003, Dr. Conner testified
that he observed these defects in Tracey’s corneas and
that Tracey’s left eye had not returned to normal. Re-
garding a 2004 examination, Dr. John admitted that
Tracey “may have a little bit of glare” and gave her a
sample of prescription eye drops that would help to
reduce glare. Finally, as to his exam just before trial in
2007, Dr. Conner testified that “the irregularities, the
distortion, the aberrations are still present.” When asked
whether he observed any change in the extent of the
aberrations between 2003 and 2007, he testified, “I think
they’re just the same.” Throughout this time, Tracey’s
complaints remained constant—ghosting, shadowing,
halos, and glare—and these are the symptoms that Drs.
Price and Conner testified they expect for a person
with irregularities in the cornea.
This expert testimony allowed the jury to conclude that
the damage to Tracey’s left cornea from the LASIK sur-
gery never fully healed, and would never fully heal. Ac-
No. 07-4059 21

cordingly, the evidence was sufficient to show a
permanent injury caused by Dr. McGlothan’s negligence.
In addition to his permanent injury argument,
Dr. McGlothan argues that the Wallaces failed to prove
with expert evidence that Tracey’s vision problems
were not due to a pre-existing injury to her left eye.
Dr. McGlothan points to the patient history form that
Tracey filled out for Dr. Conner, on which she indicated
that she had been “bothered by glare or reflection, particu-
larly when driving at night.” Dr. McGlothan’s counsel
questioned Tracey about whether she had experienced
these problems during the short period between the
LASIK surgery and her visit with Dr. Conner, or whether
the “glare or reflection” problems pre-dated the surgery.
She responded, “I’ve always had problems with it,
and it’s just been aggravated since the surgery.”
Dr. McGlothan’s counsel twice more confirmed her re-
sponse. In addition to Tracey’s testimony, Dr. Fitzgerald,
Tracey’s family practice doctor, testified that in
July 2001, Tracey visited his office and told him that she
had been in the emergency room for corneal abrasions.
Dr. McGlothan argues that this evidence established
that Tracey had a pre-existing eye condition that
triggered the Wallaces’ duty to prove causation by expert
testimony. See Topp, 838 N.E.2d at 1032. Specifically, he
argues that the Wallaces failed to prove through expert
testimony the extent to which the LASIK procedure
aggravated Tracey’s pre-existing condition. See Alexander
v. Scheid, 726 N.E.2d 272, 284 (Ind. 2000) (“[A] defendant is
liable for the aggravation or exacerbation of a current
22 No. 07-4059

injury, to the extent that the defendant’s ‘conduct has
resulted in an aggravation of the pre-existing condition,
[but] not for the condition as it was.’ ”) (quoting Dunn
v. Cadiente, 516 N.E.2d 52, 56 (Ind. 1987)).
At the outset, we observe that the evidence
Dr. McGlothan cites to establish a pre-existing condition
is sparse.7 The jury heard Tracey’s testimony regarding
Dr. Conner’s patient history form and some evidence
that she once visited the hospital for a corneal abrasion.
Regarding the hospital visit, Dr. Fitzgerald testified that
he examined her eye for corneal abrasions in July 2001
and found none. From this, the jury could conclude
that any abrasion had healed completely. Other than
Dr. Fitzgerald, the jury heard no medical evidence that
Tracey had a pre-existing condition.
As for Tracey’s testimony about the patient history
form, we cannot agree that this testimony required a
reasonable jury to conclude that Tracey had a pre-existing
eye condition that caused her current vision problems. The
expert testimony was sufficient for the jury to conclude
otherwise. As discussed, Drs. Conner and Price observed
scarring and irregularities to Tracey’s left cornea fol-
lowing the LASIK procedure using instruments such as
slit-lamp microscope. These objective medical observations

7
Dr. McGlothan argues that he did not have suf-
ficient opportunity to develop this evidence. But as we discuss
below, Dr. McGlothan had sufficient notice and opportunity
to make this a significant issue at trial. From the record, it
appears that he chose not to do so.
No. 07-4059 23

gave the jury a sound basis on which to conclude that
Tracey’s injury was not due to a pre-existing condition. Cf.
Topp, 838 N.E.2d at 1034-36 (finding insufficient the plain-
tiff’s subjective complaints of back pain where medical
experts could only speculate that her pain was caused by
the accident at issue).
Tracey’s physicians also thought that the type of corneal
damage they observed was consistent with Tracey’s
current vision problems. Dr. Price testified that he antici-
pated Tracey would have distortion of images, ghosting,
and shadowing, along with starbursts, halos, and glare
around lights at night. He also testified that he expected
“quite a bit of distortion problems with night driving.”
Dr. Conner testified similarly. Based on what he
observed, he expected Tracey to have impaired vision in
dim light and driving situations because of oncoming
headlights. He wrote a note to Tracey’s employer sug-
gesting that Tracey’s hours be adjusted to avoid her
having to drive at night.
Moreover, Tracey’s complaints after the surgery are
largely different from the alleged pre-existing condition.
Indiana law attaches some significance to the fact that a
plaintiff’s symptoms after an accident are different from
those of which she may have previously complained. In
Roberson v. Hicks, for example, the court held that a jury
could reasonably conclude that the plaintiff’s pain was
caused by an automobile accident and not by the
plaintiff’s multiple sclerosis. 694 N.E.2d at 1164. Although
the expert lacked medical certainty regarding causation,
the court sided with the plaintiff because the plaintiff
testified that his pain began shortly after the accident
24 No. 07-4059

and that this pain was different from the pain he felt with
MS. Id. The expert corroborated the plaintiff’s account,
testifying that the plaintiff’s pain was consistent with
the kind of pain that one would ordinarily experience
after a car crash. Id.
Here, there is no evidence that Tracey suffered from
ghosting prior to the surgery. Moreover, nothing in the
record indicates that ghosting is the same as, or is an
exacerbation of, “glare or reflection.” Instead, the evidence
shows the opposite. When describing each of these symp-
toms, Dr. Price explained ghosting and glare in different
terms. “Glare” concerns light being distorted as it passes
through the cornea. Dr. Price described it like a windshield
with water droplets on it. With glare, a person could see
halos or starbursts when looking at lights. “Ghosting,” on
the other hand, means that a person sees a double im-
age—Dr. Price described it in terms of a phenomenon
that occasionally occurs on old television sets with
indoor antennas.
As for Tracey’s current complaints concerning glare,
the jury could have concluded that this symptom was a
result of the surgery as well. Tracey testified that she had
been bothered by “glare or reflection.” But the jury heard
from Dr. Conner that reflection and glare are distinct
problems. (“I didn’t equate them as being equal.”). Reflec-
tion can be caused by simply wearing hard contact lenses,
while glare can come from other sources, such as corneal
irregularities or aberrations. Thus, the jury could have
inferred that Tracey’s testimony regarding her patient
history form referred only to reflection, and that her
No. 07-4059 25

current complaints of glare are different from any prob-
lems she might have experienced before the surgery.
All of this testimony by Tracey and her physicians was
sufficient for the jury to conclude that Tracey’s current
symptoms were caused by Dr. McGlothan’s negligently
performed LASIK surgery and wholly unrelated to any
pre-existing condition.
That brings us to Dr. McGlothan’s final challenge to the
sufficiency of the evidence. Although we have concluded
that the evidence was sufficient to show that Tracey
suffered a new, permanent injury to her left eye,
Dr. McGlothan points to a lack of evidence comparing
that injury to the damage to Tracey’ right eye. Recall that
the LASIK procedure damaged Tracey’s right eye along
with her left, but it was established on summary judg-
ment that Dr. McGlothan acted negligently only with
respect to the left eye. And although the doctors con-
cluded that the damage to Tracey’s left eye was consistent
with her symptoms of ghosting, shadowing, halos, and
glare, none opined on the extent to which Tracey would
have those same symptoms from the damage to her right
eye alone. According to Dr. McGlothan, this lack of evi-
dence comparing the left- and right-eye damages demon-
strates the Wallaces’ failure to prove proximate cause.
We acknowledge that the evidence comparing the
injuries to Tracey’s left and right eye was sparse. Still, we
do not think that this gap in the evidence demonstrates
an insufficiency of proof, given the other evidence linking
the left-eye injury to Tracey’s vision symptoms. As dis-
cussed, the doctors testified that Tracey’s symptoms
26 No. 07-4059

were consistent with their observations of the objective
damage to her left eye. So unlike other pre-existing injury
cases in which plaintiffs can only speculate on which of
several, unrelated factors caused their damages, see Dunn,
516 N.E.2d at 54-55 (negligent surgery vs. a pre-existing
congenital abnormality); Topp, 838 N.E.2d at 1030 (car
accident with the defendant vs. a history of other
accidents and back pain), in this case the Wallaces
showed a causal link between the botched surgery on
Tracey’s left eye (as opposed to her right eye) and Tracey’s
symptoms. Moreover, Dr. Price’s testimony gave the
jury a basis to conclude that the left-eye injury caused
harm beyond what Tracey would have suffered from the
right-eye injury alone; Dr. Price testified that the damage
to Tracey’s “mangled” left cornea was worse than that
to her right cornea.
To the extent that Dr. McGlothan is arguing that this
evidence failed to apportion Tracey’s damages between
the injuries to her left and right eye, this argument goes
more to the amount of the jury’s damages award than
the issue of proximate cause. See Ingersoll-Rand Corp. v.
Scott, 557 N.E.2d 679, 682 (Ind. Ct. App. 1990) (characteriz-
ing the defense argument on the apportionment of injuries
among various causes as a claim of excessive damages).
Dr. McGlothan has made clear, both in his briefs and at
oral argument, that he is not challenging the verdict
amount by appealing his motions for remittitur or a
new trial; instead, he appeals only the denial of his
motions for judgment as a matter of law based on the
proximate cause issues addressed above. Given this ap-
peal’s focus on proximate cause rather than the amount
No. 07-4059 27

or apportionment of damages, any shortcoming in the
evidence comparing the damages to Tracey’s left and
right eye is no basis for reversal.
In sum, the expert evidence, in conjunction with the
Wallaces’ testimony, was sufficient for the jury to
conclude that the buttonhole flap complication to
Tracey’s left eye, negligently caused by Dr. McGlothan’s
LASIK surgery, resulted in a permanent injury that was
unrelated to any pre-existing condition. The district court
did not err in denying Dr. McGlothan’s motions for
judgment as a matter of law.

III. Right to Cross-Examination and Alleged
Discovery Violations and Perjury
Dr. McGlothan also seeks to throw out the Wallaces’ suit
on account of what he views as discovery violations,
perjury, and violations of his right to a fair trial. As dis-
cussed, Dr. McGlothan believes that Dr. Conner’s
intake form and Tracey’s responses on cross-examina-
tion firmly establish that Tracey had a pre-existing eye
condition. Her failure to disclose that condition in her
interrogatories or at her deposition, Dr. McGlothan con-
tends, violated the discovery rules, see Fed. R. Civ. P.
26(a)(1)(A)(iii), (e)(1), (g); 37(c), and, along with a denial
of any prior symptoms at trial, constituted perjury. For
these reasons alone, Dr. McGlothan requests reversal. In
addition, Dr. McGlothan argues that the Wallaces’ failure
to disclose the alleged pre-existing condition prevented
him from effectively cross-examining Drs. Conner and
Price at trial. This, too, in Dr. McGlothan’s view, requires
that we order the Wallaces’ case dismissed.
28 No. 07-4059

We are unconvinced. To begin, Dr. McGlothan failed
to preserve one of his arguments for appeal: in the
district court, he never sought sanctions for the Wallaces’
alleged discovery violations. Though Dr. McGlothan
alleged that the Wallaces failed to disclose Tracey’s pre-
existing condition, he did so in the context of his causa-
tion argument, contending that the Wallaces failed to
prove aggravation. Neither of his Rule 50 motions men-
tions violations of Rule 26 or seeks sanctions under Rule 37.
Issues and arguments not raised before the district court
are deemed forfeited on appeal, and we review them only
for plain error, which “is rarely applied in civil cases.”
Moore ex rel. Estate of Grady v. Tuelja, 546 F.3d 423, 430
(7th Cir. 2008).8

8
The standard of review for Dr. McGlothan’s inability-to-cross-
examine argument is less clear. Dr. McGlothan argued in a
Fed. R. Civ. P. 60(b) motion for a new trial that Tracey’s
“revelation” at trial about the pre-existing condition prevented
him from cross-examining Drs. Conner and Price. On appeal,
though, Dr. McGlothan does not argue that the district court
abused its discretion in denying his Rule 60(b) motion, but
instead couches this argument within a constitutional right-to-
trial framework, which was not discussed in the motion. See
Domka v. Portage County, Wis., 523 F.3d 776, 783-84 (7th Cir. 2008)
(a specific argument, developed for the first time on appeal, is
forfeited even though the “general issue” was raised before
the district court). Whether his brief statement about cross-
examination was enough to preserve his constitutional argu-
ment need not detain us, however, since we conclude below
that the district court committed no reversible error.
No. 07-4059 29

But even if Dr. McGlothan had preserved his discovery
argument, he wouldn’t fare any better. Perjury is different
from confusion, mistake, or faulty memory; perjury is
defined (at least in the federal criminal context) as “ ‘false
testimony concerning a material matter with the willful
intent to provide false testimony.’ ” Montaño v. City of
Chicago, 535 F.3d 558, 564 (7th Cir. 2008) (quoting United
States v. Dunnigan, 507 U.S. 87, 94 (1993)). And to dismiss
a case for discovery violations, the court must first find
“willfulness, bad faith or fault.” Maynard v. Nygren, 332
F.3d 462, 468 (7th Cir. 2003). We see little or no evidence
of that here. This is not a case where the witness
concocted some elaborate alibi defense, only to later admit
it was all a farce. See United States v. Griffin, 310 F.3d 1017,
1023-24 (7th Cir. 2002). And Tracey never admitted that
her prior testimony in discovery or at trial was false. See
Allen v. Chi. Transit Auth., 317 F.3d 696, 702 (7th Cir. 2003).
At most, Tracey’s testimony was inconsistent, which
might have diminished her credibility before the jury but
was in no way perjurous. See Montaño, 535 F.3d at 564-67
(describing numerous testimonial discrepancies that
constituted “standard-fare impeachment evidence,” not
proof of perjury).
Comparing Tracey’s answers to questions in her deposi-
tion, interrogatories, and early at trial with her answers
to questions about Dr. Conner’s intake form is a bit like
comparing apples and oranges. Or at least, the record is
unclear which answers are apples and which are or-
anges. When Tracey was cross-examined about the intake
form, she said she had experienced glare or reflection when
driving at night prior to the surgery. But that doesn’t
30 No. 07-4059

establish that Tracey had a pre-existing corneal condition.
Tracey’s vision wasn’t perfect before she had LASIK; she
wouldn’t have sought the procedure if it was. Tracey wore
glasses and contacts, which, the jury heard, often cause
glare or reflection when driving at night. Tracey’s re-
sponses on the intake form and on cross-examination are
consistent with a person who wore corrective lenses.
Tracey’s testimony in her deposition and at trial that
she experienced halos, glare, and difficulty driving at
night only after the LASIK procedure is not necessarily
inconsistent with her later explanation of the intake
form. After the surgery, Tracey complained of a number
of symptoms—ghosting, halos, glare, and reflection. All of
these would affect a person’s ability to drive at night.
And indeed, Tracey testified that her night-driving
ability is all but non-existent after the surgery, given
the severity of her symptoms. But, as the doctors ex-
plained, these symptoms weren’t caused by glasses or
contacts but rather by irregularities in Tracey’s cornea,
which we have no evidence to suggest were present
before the surgery. So when Tracey was asked at her
deposition or earlier in the trial about her symptoms, she
may have thought the question referred to the kinds of
symptoms she now experiences with her damaged corneas,
not the everyday glare or reflection caused by glasses or
contacts. Notably, in addition to glare and night driving,
these questions also referred to “halos,” a symptom she
has only complained of post-LASIK.
True, Tracey said the surgery “aggravated” her prior
problems. But it was well-established that someone
No. 07-4059 31

with damaged corneas would find it harder to drive at
night. Tracey wasn’t necessarily referring to the aggrava-
tion of a pre-existing medical condition. She said her
night driving was worse after the surgery. That does not
definitively establish that Tracey had pre-existing damage
to her corneas. It might only mean that prior to surgery
she saw reflections in her contacts but after surgery now
sees halos and other distortion caused by her irregular
corneas. In any event, any inconsistency between
Tracey’s statements “is the sort of discrepancy that juries
routinely sort out.” Montaño, 535 F.3d at 565.
Dr. McGlothan cites no evidence that would support a
finding that Tracey intended to perpetrate a deliberate
falsehood, so we cannot say that Tracey committed
perjury on the witness stand or in her deposition. Id.
As for the interrogatories, we see hardly any inconsis-
tency, let alone deception, at all. Both sets of interrogatories
asked the same question: “Have you ever suffered other
illness, injury, or damage to [your eyes]?” Tracey re-
sponded “no.” Any glare or reflection Tracey experienced
while driving at night cannot be characterized as an
“illness, injury, or damage.” There was some evidence
that Tracey had suffered a “corneal abrasion” prior to the
LASIK surgery. However, Dr. Fitzgerald testified that he
examined her eyes for such abrasion and found none.
Perhaps she hadn’t suffered an abrasion after all. Without
more evidence, we are hard-pressed to conclude that
Tracey answered those questions untruthfully. We see
no evidence of a deliberate falsehood, bad faith, or fault,
but rather only unclear testimony of the kind that
juries routinely sort out.
32 No. 07-4059

Beyond the lack of evidence of willfulness, bad faith, or
fault, we are also dubious of Dr. McGlothan’s claim that
he was genuinely surprised by Tracey’s cross-examina-
tion testimony and suffered some prejudice that would
justify a sanction like dismissal. For some time prior to
trial, Dr. McGlothan had two patient history forms in his
possession. Tracey filled out one of these forms at
Dr. Conner’s office a few days after the LASIK surgery.
On this form, Tracey marked that she was bothered by
glare or reflection, particularly when driving at night, and
it was this form that Dr. McGlothan’s counsel referenced
during his cross-examination of Tracey. Dr. McGlothan
argues, however, that Dr. Conner’s form did not give
him notice that Tracey’s night-driving problems pre-dated
the surgery, because the form could have referred to
Tracey’s condition during the short period between the
surgery and Tracey’s visit to Dr. Conner. It was only at
trial, Dr. McGlothan goes on, that he learned that Tracey
never left her house during that period, which led him
to conclude that Tracey’s response on Dr. Conner’s form
referred to a problem Tracey experienced prior to surgery.
But Dr. McGlothan had another form in his possession
prior to trial—one that Tracey filled out at Dr. McGlothan’s
office before the LASIK surgery ever took place. On
Dr. McGlothan’s form, Tracey also marked that she had
trouble driving at night. Although the form does not
specifically mention glare or reflection, this form made
Dr. McGlothan aware that Tracey had complained,
prior to the surgery, that she had problems with night
driving. Dr. McGlothan could have explored both
intake forms earlier in discovery and cross-examined
No. 07-4059 33

Drs. Conner and Price on them at trial. Or if Dr.
McGlothan thought that these forms showed a pre-
existing condition that “independently cause[d]” Tracey’s
loss, Dunn, 516 N.E.2d at 56, he might have requested
an appropriate jury instruction that he could not be
liable unless his conduct “resulted in an aggravation of
the pre-existing condition,” Ind. Civil Pattern Jury In-
struction 11.26, cmt. But instead of probing the available
evidence before and during trial to get to the bottom
of Tracey’s pre-LASIK vision problems, Dr. McGlothan
decided to use the pre-existing condition issue as an
attack on Tracey’s credibility. He tried to play “gotcha”
by waiting until Tracey’s cross-examination to whip
out Dr. Conner’s form, which he viewed as contradicting
her testimony. That’s a strategic choice Dr. McGlothan
made. Moreover, Dr. McGlothan was fully able to recall
Dr. Conner or Dr. Price, move to strike their testimony,
or move for a continuance after Tracey testified on cross.
He chose not to. Instead he proceeded with his evidence
and argument on lack of permanent injury and, in
closing argument, emphasized Tracey’s purportedly
inconsistent testimony on her pre-existing condition to
impugn her credibility. These choices convince us that
Dr. McGlothan suffered no deprivation of the oppor-
tunity to cross-examine Drs. Conner and Price on the
forms he had in his possession years before trial.
We refuse to entertain Dr. McGlothan’s backdoor
attempt on appeal to now make the pre-existing condi-
tion argument he wished he had made at trial.
34 No. 07-4059

IV. Conclusion
The evidence was sufficient to show that
Dr. McGlothan’s negligence was the proximate cause of
the Wallaces’ injuries, and Dr. McGlothan has not shown
any perjury or discovery violations by the Wallaces
that would warrant reversal. We A FFIRM the dis-
trict court’s denial of Dr. McGlothan’s motions for judg-
ment as a matter of law and A FFIRM the judgment.

5-26-10