Macaulay v. Anas

United States Court of Appeals
For the First Circuit

No. 01-2539

KATHERINE MACAULAY, ET AL.,

Plaintiffs, Appellants,

v.

PETER P. ANAS, M.D.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Boudin, Chief Judge,

Selya and Lipez, Circuit Judges.

Andrew D. Swain, with whom Messa & Associates, P.C. was on
brief, for appellants.
Joseph L. Doherty, Jr., with whom Martin, Magnuson, McCarthy
& Kenney was on brief, for appellee.

February 28, 2003
 SELYA, Circuit Judge. After undergoing an unsuccessful

surgical procedure, plaintiff-appellant Katherine Macaulay sued for

negligence.1 The case was tried to a jury, which returned a

verdict in favor of her surgeon, defendant-appellee Peter P. Anas.

Macaulay appeals, assigning error to the district court's actions

in (1) refusing to grant her eve-of-trial motion for a continuance,

(2) placing certain limitations on the testimony of her principal

expert witness, and (3) permitting cross-examination of her

treating physician with respect to matters touching upon the

standard of care. Concluding, as we do, that these claims of error

are without merit, we affirm.

I. BACKGROUND

We start by sketching a broad picture of the case. We

bring that picture into sharper focus by adding more specific facts

during our discussion of particular issues.

The appellant, like many other people, suffers from back

problems. In due course, she came under the care of Dr. Anas (a

well-known orthopedist). The physician recommended that she

undergo spinal fusion surgery, and the appellant acquiesced.

Dr. Anas performed the surgery on September 11, 1992, at

New England Baptist Hospital in Boston, Massachusetts. The

1
Macaulay's husband, Kenneth, and their three children also
sued. Since their claims are purely derivative, we treat the case
as if Katherine Macaulay was the sole plaintiff and appellant. Our
decision is, of course, binding on all parties.

-2-
operation was not a success. When the Macaulay family moved to

Philadelphia, the appellant came under the care of a different

orthopedist, Dr. Todd Albert. On February 14, 1994, Dr. Albert

performed corrective spinal surgery.

Displeased by what had happened on Dr. Anas's watch, the

appellant brought a diversity action, 28 U.S.C. § 1332(a), in the

United States District Court for the District of Massachusetts.

She named as defendants Dr. Anas, the hospital,2 and AcroMed

Corporation (the manufacturer of the hardware used in the original

surgery). She alleged, inter alia, that Dr. Anas had been

negligent in using investigational bone screws, in improperly

positioning them during the operation, and in failing to remove

them afterwards.

Within a matter of weeks, the case was transferred, for

purposes of centralized pretrial proceedings, to the Eastern

District of Pennsylvania. See 28 U.S.C. § 1407 (describing

procedures applicable to multidistrict litigation). The transfer

was prompted by the pendency of hundreds of other cases involving

manufacturers of investigational medical hardware. See In re

Orthopedic Bone Screw Liab. Litig., 176 F.R.D. 158 (E.D. Pa. 1997).

When the claims against the manufacturers were resolved, the

2
On March 28, 2001, the parties filed a stipulation dismissing
with prejudice all claims against New England Baptist Hospital.
Accordingly, we make no further reference to the allegations
against that defendant.

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appellant's case was remitted to the District of Massachusetts. At

that point, AcroMed was no longer a defendant.

On August 15, 2000, the district court referred the case

to the Massachusetts Medical Malpractice Tribunal (the Tribunal).

See Mass. Gen. Laws ch. 231, § 60B. On March 15, 2001, the

Tribunal rendered a decision in favor of Dr. Anas, finding that the

appellant's case exemplified "an unfortunate medical result." The

appellant posted the $6,000 bond required in order to pursue her

claim against Dr. Anas in court. See id.

Meantime, the district court had been attempting to

compose a timeline leading to trial. The court initially scheduled

the trial to commence on November 6, 2000, but postponed it sine

die because the Tribunal had not yet acted. After March of 2001,

the district court set a number of putative trial dates, but

vacated all of them for one reason or another (in several instances

to accommodate the appellant's counsel). The court finally settled

upon a firm trial date of September 10, 2001, and rebuffed the

appellant's eleventh-hour efforts to vacate that assignment.

The trial went forward on September 10, but the

appellant's principal attorney, Joseph Messa, was not present.

Instead, one of Messa's associates, Andrew Swain, took the lead.

On September 24, 2001, the jury returned a defendant's verdict.

This timely appeal ensued.

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II. DISCUSSION

We divide our discussion of the issues into three

segments, corresponding to the appellant's assignments of error.

A. Refusal to Grant a Continuance.

The appellant calumnizes the district court for its

refusal to vacate the September 10 trial assignment, asserting that

the court's dogged insistence on going forward effectively deprived

her of counsel of her own choosing. In her view, Swain — a

relatively inexperienced associate — was no substitute for the

highly skilled advocate whom she had hired. She mentions

fleetingly a second reason why the district court should have

granted a continuance: her house had burned down approximately one

month before the trial date.

We review the district court's denial of a continuance

for abuse of discretion. United States v. Saccoccia, 58 F.3d 754,

770 (1st Cir. 1995); United States v. Devin, 918 F.2d 280, 291 (1st

Cir. 1990). We discern none here. After all, a party's right to

counsel of her choosing is not absolute, and courts are not

required either to wait endlessly for lawyers to make themselves

available or to conform their calendars to suit attorneys'

preferences. See, e.g., United States v. Woodward, 291 F.3d 95,

106 (1st Cir. 2002); United States v. Noah, 130 F.3d 490, 497 (1st

Cir. 1997).

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 The record reflects that the trial court exhibited great

patience in endeavoring to accommodate the appellant's counsel.

The appellant requested no fewer than four trial continuances,

including requests made in March, May, and June of 2001 due to

conflicts with Messa's schedule. On each of these occasions, the

district court yielded to counsel's scheduling constraints and

delayed the trial. When all was said and done, these serial

continuances moved the scheduled start of trial to July 9, 2001.

On July 6, the court held a pretrial conference. With

the agreement of both parties, it vacated the July 9 trial

assignment. In an effort to accommodate the vacation schedules of

all concerned, the court proposed to start the trial on September

4, 2001. Messa asked for special consideration because he was

planning to return from vacation that day. The court then

suggested September 5, but Messa protested. The court yielded once

more; it acceded to Messa's importunings and set trial to commence

on September 10. But the court exacted a reciprocal commitment

from Messa. It fixed the September 10 trial date only after the

lawyer gave what was described as an "ironclad" guarantee that he

or someone from his office would be available to try the case that

day. On July 12, 2001, Messa confirmed that assurance in writing.

The English satirist, Jonathan Swift, wrote nearly three

centuries ago that "promises and pie crusts are made to be broken."

J. Swift, Polite Conversation (1738). So it was here. On August

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30, 2001, Messa wrote to the district court requesting yet another

continuance because he was to start a trial in Pennsylvania on

September 10 and neither the appellant nor his Pennsylvania client

would consent to having another lawyer appear. On September 4, the

district court rejected Messa's request. Noting that the appellant

previously had been granted multiple continuances, the court

declared: "I picked a date satisfactory to you and you guaranteed

me you would be available." Messa renewed his request, this time

mentioning that the Macaulays' family home had burned down several

weeks earlier. The court responded that it had selected the

September 10 date at Messa's urging, that it had blocked off three

weeks to accommodate the trial, and that it would not continue the

case. Messa essayed yet a third request, advising the court that

the appellant had threatened to sue Messa's firm if Swain tried the

case and lost. The court stood firm.

We descry no hint of error. District courts enjoy broad

discretion in administering their dockets. This discretion

encompasses the granting and denial of requests for continuances.

Saccoccia, 58 F.3d at 770. Mindful that the exigencies of managing

a heavy caseload are real, appellate review of the denial of a

motion to continue is highly deferential. An appellate court

"looks primarily to the persuasiveness of the trial court's reasons

for refusing the continuance and gives due regard not only to the

factors which inform that court's ruling but also to its superior

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point of vantage." United States v. Ottens, 74 F.3d 357, 360 (1st

Cir. 1996). The burden is on the movant to demonstrate that the

trial court, in refusing a continuance, "indulged in a serious

error of law or suffered a meaningful lapse of judgment, resulting

in substantial prejudice." Saccoccia, 58 F.3d at 770.

In sifting the record to determine whether this heavy

burden has been carried, an inquiring court must consider the

totality of the circumstances, including, in addition to the

trier's rationale for denying the motion, the reasons that the

movant contemporaneously advanced in support of her request for a

continuance, the history of the proceedings, the probable utility

of a continuance, the extent of inconvenience to others (e.g., the

court, the witnesses, and the opposing party) should a continuance

ensue, and the extent of any unfair prejudice to the movant should

a continuance be denied. See id.

Here, the hallmark of the district court's handling of

the case was patience, not hubris. Its stated rationale for

refusing a further continuance was entirely plausible. In

contrast, the appellant's claim of entitlement was weak, especially

since Messa knew about the conflicting Pennsylvania trial

assignment when he guaranteed that the appellant's case would go

forward on September 10. Moreover, the history of the litigation

buttresses the court's action. The court had been indulgent in

trying to work around Messa's hectic schedule. Having granted

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several continuances, the court was justified in drawing a line in

the sand. Even then, the court did not set the September 10 trial

date by fiat, but, rather, based it on Messa's unqualified

assurance of his availability. Both the court and the adverse

party relied on this assurance: the court had cleared its

calendar, the defendant-doctor had adjusted his workload, and the

defense had proceeded with its trial preparations on the reasonable

assumption that the case would go forward. It was the court's

prerogative — indeed, its duty — to weigh these facts in acting

upon the appellant's request for yet another continuance. See

Ottens, 74 F.3d at 360.

To say more on this point would be to paint the lily.

While we are sympathetic to the appellant's plight, parties are

bound by their attorneys' representations, see United States v.

Woburn City Ath. Club, 928 F.2d 1, 6 (1st Cir. 1991), and courts

are entitled to take those representations at face value. That

Messa chose to do a juggling act by committing himself to begin

trials in two different courts on the same date was regrettable —

but it was not the court's responsibility to extricate him from

this self-dug hole. Courts simply cannot afford to let lawyers'

schedules dominate the management of their dockets. Given the

totality of the circumstances, it was not an abuse of discretion

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for the district court to insist that the trial begin as

scheduled.3

B. Preclusion of Expert Testimony.

The appellant next strives to convince us that the

district court erred in precluding her expert witness, Dr. Robert

Dunn, from testifying that the surgery performed by Dr. Anas was

not medically indicated. We are not persuaded.

In order to place this assignment of error in

perspective, we first inspect the relevant provisions of the Civil

Rules. Under that regime:

Except as otherwise stipulated or directed by
the court, [a party's] disclosure shall, with
respect to a witness who is retained or
specially employed to provide expert testimony
in the case . . . , be accompanied by a
written report, prepared and signed by the
witness. The report shall contain a complete
statement of all opinions to be expressed and
the basis and reasons therefor . . . .

Fed. R. Civ. P. 26(a)(2)(B). Once such a disclosure is made, it

must be kept current. See Fed. R. Civ. P. 26(e)(1) (explicating

the duty to supplement discovery responses). Since an important

object of these rules is to avoid trial by ambush, the district

3
We see no need to deal at length with the house fire. In
relation to the request for a continuance, that was plainly an
afterthought. In all events, the appellant has not satisfactorily
explained how that incident rendered it infeasible for her to
proceed with the trial. We note, moreover, that the tenuous
linkage that the appellant offered between the house fire and her
need for a continuance went to damages (an issue that the jury
never reached), not to liability.

-10-
court typically sets temporal parameters for the production of such

information. See, e.g., Fed. R. Civ. P. 16(b). Such a timetable

"promotes fairness both in the discovery process and at trial."

Thibeault v. Square D Co., 960 F.2d 239, 244 (1st Cir. 1992). When

a party fails to comply with this timetable, the district court has

the authority to impose a condign sanction (including the authority

to preclude late-disclosed expert testimony). Id. at 245.

Moving from the general to the particular, we trace the

chronology of pertinent events in this case. On March 21, 2000,

the district court entered an order establishing a discovery cut-

off date some six months in the future. The court subsequently

extended that date to October 27, 2000. At a status conference

held after the close of standard discovery, the court constructed

a staggered template for the exchange of expert witnesses' reports

and related depositions. The deadline for the appellant's

submission of reports was February 23, 2001.

Pursuant to this timetable, the appellant produced Dr.

Dunn's report on February 21, 2001. The report concluded that Dr.

Anas had improperly positioned the screws that he placed in the

appellant's spine and had compounded this negligence by not

removing the screws after it had become apparent that the appellant

was suffering significant nerve-root irritation. On March 7, the

parties filed a joint motion to vacate the extant March 19 trial

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assignment and reassign the case for trial on April 30, 2001.4 The

district court granted them half a loaf, shifting the trial date to

April 2, 2001.

On March 20, the parties took a videotaped deposition

from Dr. Albert (the appellant's treating physician). This

deposition was taken on the understanding that it would be used at

trial in lieu of live testimony by Dr. Albert. Eight days later —

and more than a month after the deadline had passed for submitting

her expert witnesses' reports — the appellant produced a

supplemental report from Dr. Dunn. In this report Dr. Dunn opined,

for the first time, that the surgery that had been performed was

not medically indicated.

The following day, the district court held a pretrial

conference. The defense complained about the appellant's attempted

injection of a new theory of liability well after the deadline had

passed for divulging her expert witnesses' reports. The district

court noted the imminence of trial and ruled that the parties were

bound by the tenor of the reports that had been submitted on or

before February 23. The court made an exception for certain

additional x-ray and CT films that the appellant had belatedly

4
There is some dispute as to whether both sides joined in the
motion or, alternatively, whether the continuance was requested by
the defense (because of the delayed production of records from the
appellant's treating physician) and not opposed by the appellant.
That dispute is immaterial for purposes of this appeal.

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produced,5 and, subsequently, reassigned the case for trial on May

7, 2001. Although the trial eventually was postponed until

September 10, 2001, the appellant never sought to revisit the

district court's preclusionary order.

This brings us to the standard of review. District

courts have available a range of sanctions for the untimely

production of discovery materials. In addressing such matters,

trial judges must work a complicated equation, balancing fairness

to the parties with the need to manage crowded dockets. Because

trial judges tend to have an intimate knowledge of the variables

that enter into the equation, see, e.g., Fashion House, Inc. v. K

Mart Corp., 892 F.2d 1076, 1082 (1st Cir. 1989) (explaining that,

"district judges . . . are, by and large, in a far better position

than appellate tribunals to determine the presence of misconduct

and to prescribe concinnous remedies"), appellate review of

sanctions orders is deferential. See Thibeault, 960 F.2d at 243-

44. It follows that when a party proffers expert testimony out of

time and the district court opts to preclude it, the question on

appeal is not whether we would have imposed the same sanction.

Rather, the question is whether the district court's action was so

wide of the mark as to constitute an abuse of discretion. Nat'l

5
The appellant does not argue that this exception threw the
court's order out of balance. In any event, since the delayed
production was attributable to the appellant, such an argument
would be insupportable.

-13-
Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642 (1976)

(per curiam); Thibeault, 960 F.2d at 243.

In answering this question, the court of appeals must

consider a multiplicity of pertinent factors, including the history

of the litigation, the proponent's need for the challenged

evidence, the justification (if any) for the late disclosure, and

the opponent's ability to overcome its adverse effects. Thibeault,

960 F.2d at 244; Johnson v. H.K. Webster, Inc., 775 F.2d 1, 7-8 &

n.7 (1st Cir. 1985). Surprise and prejudice are important integers

in this calculus. Thibeault, 960 F.2d at 246; Johnson, 775 F.2d at

7 n.7. So too is an assessment of what the late disclosure

portends for the court's docket. Salgado v. Gen. Motors Corp., 150

F.3d 735, 742 (7th Cir. 1998).

In this instance, the appellant faces a steep, uphill

climb. The record shows beyond hope of contradiction that she had

ample time to conduct discovery and to submit her expert reports

within the period allotted by the district court.6 Yet, she did

not proffer the report limning the "unnecessary surgery" theory

until more than a month after the applicable deadline had expired.

6
The appellant filed her complaint on September 6, 1996.
Although the parties may have been somewhat limited in their
ability to conduct discovery during the period that this case was
involved in the multidistrict litigation process, they were
certainly in a position to begin accumulating their expert
testimony. That extended window of opportunity counsels
persuasively in support of the district court's preclusionary
order.

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Moreover, the neoteric theory was not based on any newly discovered

evidence, and the appellant has not advanced any real justification

for its tardy emergence. To compound these failings, discovery was

closed and trial was imminent at the time the supplemental report

surfaced. Consequently, had the district court allowed the late

submission, it would have had a Hobson's choice: either to force

the defense to trial without appropriate preparation (such as

targeted pretrial discovery) or to reopen discovery and vacate the

trial assignment. Under those circumstances, it is surpassingly

difficult to fault the court for refusing to overlook the discovery

violation.

In an effort to blur this compelling picture, the

appellant argues that the lower court should have permitted her to

proceed because the defense could not credibly claim to have been

surprised. This argument is little more than whistling past the

graveyard. A careful review of the record shows that, although the

"unnecessary surgery" theory arguably was covered by boilerplate

language in the original complaint, the appellant did not actively

pursue it at any time thereafter. The appellant's main theory of

negligence, all along, was that Dr. Anas had improperly positioned

the screws that he inserted into her spine, and, relatedly, had

failed to remove them after they caused nerve-root irritation. The

fact that the complaint peripherally addressed several other

possible theories of negligence did not excuse the appellant's

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breach of her obligation to disclose anticipated expert testimony

in a timely fashion. It is one thing to tick off a laundry list of

potential theories at the start of litigation. It is quite another

to develop the theories that actually will be prosecuted and keep

them in play. See, e.g., Torres-Rios v. LPS Labs., Inc., 152 F.3d

11, 16 (1st Cir. 1998) (refusing to entertain a claim that was

implicit in a complaint, but not developed in later proceedings).

This was clearly a new theory of liability.

The fact that the trial did not go forward until

September 10, 2001, is irrelevant to our analysis. When the

district court made its preclusionary ruling, trial was scheduled

to start on May 7. No one anticipated that it would be postponed.

And while this ensuing delay might have provided sufficient time

for the parties to address the new theory of liability, the

appellant did not ask the court to reconsider its ruling in light

of the extra time available. A party who has the opportunity to

ask the trial court for relief but fails to do so forfeits the

right to claim, on appeal, that the relief should have been

granted. See Anderson v. Beatrice Foods Co., 900 F.2d 388, 397

(1st Cir. 1990).

The bottom line is that the district court had a

substantial basis for finding unfair surprise. Moreover, on these

facts surprise and prejudice go hand in hand. Common sense

suggests that when a party makes a last-minute change that adds a

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new theory of liability, the opposing side is likely to suffer

undue prejudice. The case law reflects this understanding. E.g.,

Thibeault, 960 F.2d at 246-47. Here, the appellant introduced a

new theory of liability only days before the anticipated trial

date. Allowing her to pursue that theory would have placed an

untenable burden on the defense and, in the bargain, would have

contravened the spirit of the discovery rules. See United States

v. Procter & Gamble Co., 356 U.S. 677, 682 (1958) (explaining that

the purpose of pretrial discovery is to "make trial less a game of

blindman's buff and more a fair contest with the basic issues and

facts disclosed to the fullest practicable extent"). We conclude,

therefore, that the district court acted well within the encincture

of its discretion in ordering preclusion.

C. Cross-Examination.

The appellant asseverates that the district court abused

its discretion in allowing defense counsel to elicit standard of

care testimony during his cross-examination of Dr. Albert. In this

regard, the appellant posits that she did not identify Dr. Albert

as an expert witness who would offer standard of care testimony;

that permitting him to discuss the standard of care undermined the

physician-patient relationship; and that, in all events, the

testimony should have been excluded under Fed. R. Evid. 403.7 The

7
The rule provides in pertinent part:

Although relevant, evidence may be excluded if

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phrasing of this asseverational array distorts the real issue:

whether or not the disputed cross-examination went beyond the scope

of the witness's direct examination.

Dr. Albert testified by means of a videotaped deposition.

During direct examination by the appellant's counsel, he testified

that, in the course of spinal fusion surgery, screws are supposed

to be placed inside the pedicles of the patient's spine. He then

noted that several of the screws that Dr. Anas had inserted in the

appellant's spine were not entirely within the pedicles. In line

with this observation, he characterized the screws as

"malpositioned" or "misplaced."

On cross-examination, Dr. Albert elaborated upon these

statements. He reiterated that the screws were not located

entirely within the pedicles of the spine (and, thus, were

malpositioned or misplaced), but he then acknowledged that this

fact did not necessarily signify a deviation from the applicable

standard of care. In much the same vein, he said that, in

characterizing the screws as malpositioned or misplaced, he did not

mean to suggest that Dr. Anas had transgressed the standard of

its probative value is substantially
outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the
jury . . . .

Fed. R. Evid. 403.

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care. At trial, the district court admitted these elaborations

over the appellant's objections.

It is elementary that the scope of permissible cross-

examination is delimited by the scope of the witness's direct

examination. See Fed. R. Evid. 611(b); see also United States v.

Lara, 181 F.3d 183, 189 (1st Cir. 1999) (describing as "standard

fare" a cross-examiner's ability "to inquire into issues . . .

related to and made relevant by [direct examination]").

It is, of course, unrealistic to expect that direct

examination and cross-examination will be perfectly congruent.

See, e.g., Irons v. FBI, 880 F.2d 1446, 1462 (1st Cir. 1989) (en

banc) (noting, in dictum, that by testifying on direct examination,

witnesses may "expose themselves [on cross-examination] to a range

of questions which may go well beyond what the witness, or the

examiner on direct, chooses to present during the case in chief").

The latter need only be reasonably related to the former, and

matching the two requires the district court to make a series of

judgment calls. A district court's decision either to permit

questioning as falling within the scope of the direct or to exclude

it as falling outside that scope is evaluated for abuse of

discretion. Lara, 181 F.3d at 199; United States v. Smith, 145

F.3d 458, 462 (1st Cir. 1998). Under this standard, a decision

will be overturned only when the court misapprehends the applicable

law or commits a meaningful error in judgment. Anderson v.

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Cryovac, Inc., 862 F.2d 910, 923 (1st Cir. 1988). Even an

erroneous ruling will not justify upsetting a jury verdict unless

the error affects the aggrieved party's substantial rights. See

Fed. R. Civ. P. 61; Fed. R. Evid. 103.

Seen in this light, the pivotal question here is whether

the appellant's direct examination opened the door to the disputed

cross-examination. Although the appellant asserts that Dr. Albert

was strictly a fact witness, not an expert witness, her direct

examination did not hew to that line. In response to questions on

direct, Dr. Albert testified unequivocally that the screws used in

spinal fusion surgery should be placed within the boundary of the

pedicles. He then testified that several of the screws that Dr.

Anas had inserted in the appellant's spine were not so configured;

instead, they were malpositioned or misplaced. Although the

appellant labors to characterize these comments as statements of

fact, they bore directly on the standard of care required in the

course of performing spinal fusion surgery. The statements also

suggested (or, at least, supported a reasonable inference) that Dr.

Anas had violated this standard in fusing the appellant's spine.

The witness's use of terms such as "malpositioned" and "misplaced"

implied fault. See Oxford Engl. Dict. 1708 (compact ed. 1971)

(defining "malpositioned" as "wrongly or badly positioned"); id. at

1815 (defining "misplaced" as "put in a wrong place"). Thus, a

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reasonable jury easily could have construed Dr. Albert's statements

to mean that Dr. Anas had committed actionable malpractice.

The defense was not required to let this potentially

damaging inference hang in the air. The ground that is covered on

direct examination sets the boundaries of permissible cross-

examination. See Lara, 181 F.3d at 199; see also Fed. R. Evid.

611(b). Consequently, the cross-examiner had every right to probe

the meaning of the witness's statements in an effort to dispel any

intimation of negligence. In other words, by asking questions that

related both to the standard of care and to the breach of that

standard, the appellant effectively opened the door for the cross-

examiner to address and clarify those issues. See, e.g., United

States v. Fortes, 619 F.2d 108, 121 (1st Cir. 1980) (holding that

direct examination as to specific issues "opened the door to a full

and not just selective discussion of these matters" on cross-

examination).

Here, the cross-examiner merely walked through the open

door and had the witness explain what he meant. Cross-examiners

must be given reasonable latitude to delve into areas related to a

witness's direct examination, and that latitude was not exceeded in

this instance. Questions that serve primarily to clarify matters

raised on direct examination are, virtually by definition, within

the proper scope of cross-examination.

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 There is one conceivable gray area. The cross-examiner

asked Dr. Albert about the reported percentage of screws that do

not end up entirely within the pedicles in operations performed by

experienced orthopedic surgeons throughout the United States. The

witness responded that the figure is "as high as 15 to 20 percent."

This general question arguably went too far. But even assuming

that it exceeded the scope of the direct examination — there are

arguments both ways and much leeway for the trier's judgment — any

error was harmless. The statistic, in and of itself, cuts both

ways, and, moreover, the same percentages were vouchsafed during

the trial, without objection, by expert witnesses for both sides.

The short of it, then, is that the district court's

admission of the testimony gleaned through Dr. Albert's cross-

examination did not constitute an abuse of discretion. That said,

the appellant's remaining objections need not detain us. The

argument that the cross-examination somehow infringed upon the

physician-patient relationship is jejune; it was the appellant,

after all, who sued for personal injuries and made Dr. Albert's

testimony a centerpiece of her case. As for the argument that the

questions and answers should have been excluded under Fed. R. Evid.

403, the question is one not merely of prejudice, but of unfair

prejudice. Onujiogu v. United States, 817 F.2d 3, 6 (1st Cir.

1987). The juxtaposition of the witness's direct testimony in the

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context of the case as a whole rendered the evidence gleaned

through cross-examination both probative and fair.

III. CONCLUSION

We need go no further.8 After scrutinizing the record,

we are fully persuaded that the district court handled the case

with consummate skill and patience. Because the appellant received

a fair trial, unblemished by discernible error, the jury verdict

must stand.

Affirmed.

8
The appellant briefed a fourth claim of error, namely, her
contention that the Tribunal's decision to require a bond was
mistaken. We do not reach this matter, however, since the
appellant conceded during oral argument that the point was material
only in the event of a remand.

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