UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1288
ALBA FERNANDEZ, ET AL.,
Plaintiffs, Appellants,
v.
CORPORACION INSULAR DE SEGUROS, 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]
Cyr, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
Kevin G. Little, with whom Law Offices of David Efron was on
brief for appellants.
Carlos A. Del Valle Cruz for appellees GIC, et al.
Alfonso Miranda Cardenas, with whom Pedro J. Cordova, Jose A.
Miranda Daleccio, Jose E. O'Neil Font, Carmen M. Vivas Pietri and Jose
M. Torres Morales were on brief for appellee Dr. Ricardo Martinez
Cortinez.
March 21, 1996
CYR, Circuit Judge. Family members filed this medical
CYR, Circuit Judge.
malpractice action in federal district court following the death
of Hiram Fernandez, and a jury ultimately found for the health
care defendants. On appeal, plaintiffs challenge several trial
court rulings, including the denial of their motion for new
trial. We affirm the district court judgment.
I
I
BACKGROUND
BACKGROUND
On November 4, 1991, Hiram Fernandez was taken to the
emergency room of Federico Trilla Hospital in Carolina, Puerto
Rico, after awakening with chest pains, severe leg cramps, and
vomiting. The 64-year-old Fernandez informed Dr. Pedro Rivera
Bermudez ("Dr. Rivera") that the chest pain had stopped after he
vomited, but the severe leg pain had not abated. Fernandez
failed to tell Dr. Rivera that he was taking medication for both
asthma and hypertension. Since Fernandez did not complain of
recurring chest pain, and his vital statistics were within normal
or borderline range, Dr. Rivera tentatively diagnosed a pinched
nerve but nonetheless ordered an electrocardiogram (EKG), a
urinalysis, and an x-ray of the lumbosacral region and the left
leg. All tests were negative.
A few hours later, Dr. Rivera was relieved in the
emergency room by Dr. Ricardo Martinez Cortinez ("Dr. Martinez")
whose examination confirmed that Fernandez was in stable condi-
tion, with no complaints of chest pain. As a blood test showed a
slightly elevated white blood count, Dr. Martinez ordered a
2
second urinalysis, as well as a chest x-ray, to rule out any
urinary or pulmonary infection which might have been caused by
the vomiting. The chest x-ray coincidently revealed that Fernan-
dez had a dilated aorta, which Dr. Martinez attributed to normal
borderline hypertension in a patient of Fernandez' age, rather
than an emergent symptom of aortal dissection, a condition
usually accompanied by excruciating and unrelenting chest pain,
fainting spells, profuse sweating, and tachycardia. Like Dr.
Rivera, Dr. Martinez diagnosed a pinched nerve. Shortly thereaf-
ter Dr. Martinez referred Fernandez to a neuropathic specialist,
and discharged him.
The next day, when Fernandez was unable to recognize
family members, he was taken to his personal physician, Dr.
Abelardo Vargas, who performed a physical examination and another
EKG (also negative), and ordered an upper gastrointestinal series
to determine whether there was a hiatal hernia. The next day,
on his way to undergo these tests, Fernandez collapsed and died.
An autopsy revealed the cause of death as a dissected aorta, a
condition treatable with surgery in more than 90% of cases.
The decedent's spouse, children, and grandchildren
filed a medical malpractice suit in federal district court
pursuant to 28 U.S.C. 1332 (diversity jurisdiction) against
Drs. Rivera, Martinez, and Vargas, and against various insurers
of the Federico Trilla Hospital, including Global Insurance
Company. Subsequently, Dr. Vargas was dismissed as a party
defendant.
3
At trial, Dr. William T. Brown, a Miami-based cardiac
specialist, provided expert testimony in behalf of plaintiffs on
the applicable duty of care. Drs. Rivera and Martinez testified
in their own defense, but presented no independent medical
testimony. After the jury returned a verdict for all defendants,
plaintiffs unsuccessfully filed a motion for new trial pursuant
to Federal Rule of Civil Procedure 59, then brought this appeal.
II
II
DISCUSSION
DISCUSSION
Appellants challenge four trial court rulings. First,
they focus on the denial of their request for rebuttal to the
closing argument made by the defense. Although trial court
rulings on the conduct, timing, and ordering of closing arguments
are reviewed only for abuse of discretion, see Bonilla v. Yamaha
Motors Corp., 955 F.2d 150, 155 (1st Cir. 1992); see also United
States v. Wood, 982 F.2d 1, 4 (1st Cir. 1992), appellants insist
that civil-action plaintiffs have an absolute right to rebut the
closing argument of the defense. See Martin v. Chesebrough-
Pond's, Inc., 614 F.2d 498 (5th Cir. 1980) (noting that "[n]or-
mally the party with the burden of proof has the right to open
and close," but holding that a particular codefendant had no
right to rebuttal as against another codefendant where the two
had asserted mutual cross-claims).
Appellants are mistaken. The Martin court did not
describe a civil-action plaintiff's "right" to rebuttal as
absolute, but merely reconfirmed that the decision to permit
4
rebuttal is a procedural matter which rests within the sound
discretion of the trial judge, id. at 501, and rarely (if ever)
provides fertile ground for appeal. See Lancaster v. Collins,
115 U.S. 222, 225 (1885); Montwood Corp. v. Hot Springs Theme
Park, 766 F.2d 359, 364 (8th Cir. 1985); Moreau v. Oppenheim, 663
F.2d 1300, 1311 (5th Cir. 1981), cert. denied, 458 U.S. 1107
(1982); Commercial Iron & Metal Co. v. Bache Halsey Stuart, Inc.,
581 F.2d 246, 249 (10th Cir. 1978), cert. denied, 440 U.S. 914
(1979).
Appellants further argue that rebuttal was vital to
counteract the "inflammatory" statements made in argument by
defense counsel, who portrayed, as inexplicable, plaintiffs'
voluntary dismissal of their claims against Dr. Vargas. Defense
counsel argued to the jury that Dr. Vargas, the decedent's long-
time personal physician, was the one most likely to have been
negligent since he was the last to treat Fernandez, and more
familiar with his medical history. Defense counsel further
argued that Dr. Vargas, like the defendant-physicians, had not
suspected that the Fernandez symptoms indicated an incipient
aortal dissection but rather a hiatal hernia. Appellants there-
fore contend that they were entitled to remind the jury in
rebuttal that: (1) the defendants had the right to implead Dr.
Vargas if they believed he was the only negligent party and the
sole proximate cause of Fernandez' death, and (2) Dr. Vargas had
not treated Fernandez in a hospital; thus, unlike defendants,
could not as readily have obtained a chest x-ray.
5
As plaintiffs failed to challenge the statements made
by defense counsel in closing argument, we review only for plain
error. See Johnson v. National Sea Prods., Ltd., 35 F.3d 626,
631 (1st Cir. 1994). The statements made by the defense in
closing were in no sense inflammatory, but rather a measured
response to earlier observations by plaintiffs' counsel that "Dr.
Vargas [is not] responsible for anything here simply because he
did not have the x-rays that these defendants had the benefit of
having because he was not in a position of having a full clinical
picture." Indeed, plaintiffs not only invited the defense
response they now claim gave rise to a vital need for rebuttal,1
but their invitation was itself a sufficient "reminder" to the
jury that plaintiffs had adduced evidence that Dr. Vargas did not
treat Fernandez in a hospital setting where x-rays were readily
obtainable. Thus, the district court ruling was well within its
sound discretion.
In addition, though Fed. R. Civ. P. 14(a) permits
defendants to implead a joint tortfeasor, see also Reyes-Lopez v.
Misener Marine Constr. Co., 854 F.2d 529, 535 n. 23 (1st Cir.
1988) (citing to Puerto Rico case law allowing joint-tortfeasor
contribution), Rule 14 is not mandatory. Appellants do not cite,
nor have we found, any authority for the proposition that a jury
must be permitted to draw an adverse inference from a defendant's
decision to forego a Rule 14 impleader. We therefore conclude
1In fact, defense counsel expressly noted in closing argu-
ment: "This is the same Dr. Abelardo Vargas and I refer to this
because brother counsel did refer to it [in his closing]."
6
that there was no plain error.
Second, appellants claim that it was an abuse of
discretion to refuse their timely request to instruct the jury
that defendants could have impleaded Dr. Vargas. For the reasons
discussed above, we find no abuse of discretion. See Makuc v.
American Honda Motor Co., 835 F.2d 389, 393 n.1 (1st Cir. 1987)
(noting that proponent must cite to some legal authority which
would support its proposed jury instruction).
Third, appellants contend that over-repetition of the
district court's unexceptionable jury instruction that plain-
tiffs must establish all elements of their negligence claims
constituted reversible error because it exaggerated the burden of
proof in the minds of the jury. See United States v. Assi, 748
F.2d 62, 66 (2d Cir. 1984). Similar reversible error arose,
plaintiffs say, from the district court's over-repetition of its
"error in judgment" instruction, viz., that a physician is not
liable under Puerto Rico law for a faulty diagnosis or failure to
treat if there existed "a reasonable or educated doubt as to the
[appropriate] medical course to [have] follow[ed]."2 Once
again, we must disagree.
As appellants failed to object to the burden-of-proof
instructions before the jury retired to deliberate, see Fed. R.
Civ. P. 51, we review for plain error. See Kerr-Selgas v.
2Appellants also argue that no "error-in-judgment" instruc-
tion was appropriate because defendants failed to adduce expert
medical testimony to support a jury finding that "a reasonable or
educated doubt" existed. But see infra pp. 8-10.
7
American Airlines, Inc., 69 F.3d 1205, 1213 (1st Cir. 1995).
Even though there may be a threshold beyond which further repeti-
tion of an otherwise proper jury instruction creates an unaccept-
able risk that the jury will be misled, see Davet v. Maccarone,
973 F.2d 22, 26 (1st Cir. 1992), appellants do not approach such
a showing by citing three brief references to the burden of proof
in the eleven-page jury charge.
Similarly, though plaintiffs asserted a contemporaneous
objection to the "multiple" error-in-judgment instructions, there
was no error. A correct understanding of the error-in-judgment
principle, the seminal legal concept defining the duty of care
incumbent upon physicians under Puerto Rico medical malpractice
law, was vital to a proper jury verdict. Moreover, the trial
court's error-in-judgment instructions, individually and in
combination, were neither suggestive nor prejudicial.
Finally, appellants claim that the district court erred
in denying their motion for new trial. See Fed. R. Civ. P. 59.
Plaintiffs' independent expert, Dr. Brown, testified that Drs.
Rivera and Martinez were negligent in failing to record Fernan-
dez' past medical history on the hospital charts; and in failing
to diagnose the aortal dissection on November 4, based on the
complaints of earlier chest pain, and the chest x-ray disclosing
aortal dilation. Appellants argue that the jury verdict was
against the weight of the evidence because the duty of care in a
malpractice action can only be proven through expert medical
testimony; their expert, Dr. Brown, was the only independent
8
medical expert to testify at trial; and the self-serving, biased
testimony by the defendant-physicians themselves concerning their
own duties of care was inherently untrustworthy.
9
A Rule 59 ruling, denying a motion for new trial
based on an alleged insufficiency of evidence, is reviewed for
abuse of discretion. See Lama v. Borras, 16 F.3d 473, 477 (1st
Cir. 1994). A new trial should be granted only if the verdict,
though rationally based on the evidence, "was so clearly against
the weight of the evidence as to amount to a manifest miscarriage
of justice." Id. But where there is substantial evidence to
support the verdict, it is "'only in a very unusual case'" that
denial of a Rule 59 motion will be ruled an abuse of discretion.
Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir. 1987) (citation
omitted). This is not such a case.
At trial, plaintiffs had to establish: (1) the basic
norms of knowledge and medical care applicable to general practi-
tioners or specialists; (2) that the defendant-physicians did
not meet these basic norms in their treatment of Fernandez; and
(3) a causal relation between the defendants' acts or omissions,
and Fernandez' death. See Rolon-Alvarado v. Municipality of San
Juan, 1 F.3d 74, 77 n.2 (1st Cir. 1993). Although jurors rarely
are able to determine the applicable standard of medical care
without the benefit of expert testimony, under Puerto Rico law
"there exists always a presumption that the treating physicians
have observed a reasonable degree of care . . . in the process of
giving medical attention and treatment. [And] [p]laintiff bears
the burden of refuting this presumption." Id. at 78 (emphasis
added). Thus, appellants' premise that malpractice defendants
must invariably introduce independent expert testimony on the
10
applicable duty of care is flawed. Although defendant-physi-
cians often do adduce independent expert testimony on the appli-
cable standard of medical care, the jury's implicit rejection of
Dr. Brown's testimony in this case was itself sufficient to
support a verdict for defendants because of the rebuttable
presumption of due care indulged under Puerto Rico law, see id.
The jury was not compelled to credit Dr. Brown's
testimony. "While not allowed to speculate, the factfinder is of
course free to find some experts more credible than others."
Lama, 16 F.3d at 478. On cross-examination, Dr. Brown admitted
that he was not able to read or speak Spanish fluently, that he
had not been provided initially with certified English transla-
tions of the hospital and medical records relating to Fernandez,
and that until shortly before trial he had relied on informal
translations whose accuracy was seriously disputed at trial
prepared by his secretary and plaintiffs' counsel.3 Given the
infirmities in the only expert testimony presented by plaintiffs,
there was no abuse of discretion in denying a new trial.4
3For example, the hospital records stated that Fernandez had
vomited before arriving at the hospital, and that this "ended"
his chest pain, while the informal translations relied on by Dr.
Brown merely indicated that the chest pain had "improved." In
addition, presented with a medical treatise describing typical
symptoms of an impending aortal dissection, Dr. Brown's only
response was the unexplicated assertion that he simply did not
care what the medical treatise provided.
4As concerns the contention by Dr. Brown that the defendant-
physicians were negligent in failing to record Fernandez' medical
history on the medical charts, the jury was entitled to credit
the defendant-physicians' testimony that they left the "medical
history" section of the hospital record blank because Fernandez
informed them (inaccurately) that he had no significant medical
11
The district court judgment is affirmed. Costs are
The district court judgment is affirmed. Costs are
awarded to appellees.
awarded to appellees.
history. See supra p. 2.
12