United States Court of Appeals
For the First Circuit
No. 02-2359
OLGA GAYDAR; OLEKSANDR STEPANOV,
Plaintiffs, Appellees,
v.
SOCIEDAD INSTITUTO GINECO-QUIRURGICO Y PLANIFICACION FAMILIAR
d/b/a CLINICA GINECO-QUIRURGICA; HECTOR E. ORTIZ-PEREZ;
IRIS MALDONADO; CONJUGAL PARTNERSHIP ORTIZ-MALDONADO;
SINDICATO DE ASEGURADORES PARA LA SUSCRIPCION CONJUNTA DE SEGURO
DE RESPONSABILIDAD MEDICO-HOSPITALARIA ("SIMED"),
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Lynch, Lipez, and Howard, Circuit Judges.
Jose A. Miranda Daleccio, with whom Ramonita Dieppa Gonzalez
and Miranda Cardenas & Cordova were on brief, for appellants.
Guillermo Mancari, with whom Ramon M. Gonzalez was on brief,
for appellees.
September 29, 2003
LIPEZ, Circuit Judge. This appeal challenges a
substantial verdict against an abortion clinic for medical
malpractice. The defendants ask us to vacate the jury verdict in
favor of the plaintiffs, claiming that the court made a number of
erroneous evidentiary rulings during the trial. After a careful
review of the record, we affirm the verdict for the plaintiffs.
I.
Plaintiffs-appellees Olga Gaydar and Oleksandr Stepanov
visited Sociedad Instituto Gineco-Quirurgico y Planificacion
Familiar d/b/a Clinica Gineco-Quirurgica ("the clinic" or
"Clinica") on April 24, 2000, for the purpose of obtaining an
abortion for Gaydar. Taking into consideration the date of her
last menstrual period, Gaydar estimated that she was five weeks
pregnant. After arriving at the clinic and completing the medical
history forms provided to her, Gaydar underwent a pelvic
examination, followed by a suction curettage1 procedure intended to
terminate her pregnancy. Following the procedure, she was given
two instruction sheets that contained information outlining what
symptoms could be expected after an abortion and what symptoms
should be considered abnormal. The instructions also indicated
1
A suction curettage is a method of early abortion in which
a small tube attached to a suction machine is inserted through the
patient's dilated cervix into the uterus, after which the contents
of the uterus are emptied into the tube.
-2-
that she should return to the clinic two weeks after the procedure
for a follow-up appointment.
In the days after the procedure, Gaydar continued to
experience nausea and breast tenderness; as she testified at trial,
she "felt like [she] was still pregnant." She purchased and
performed a home pregnancy test, which returned a positive result.
She also began experiencing pain in the lower area of her abdomen.
On May 5, 2000, eleven days after the procedure, Gaydar and
Stepanov returned to the clinic, and explained to a nurse and the
receptionist that Gaydar was experiencing symptoms of pregnancy,
had received a positive result on a home pregnancy test, and was in
pain. The clinic employees explained to Gaydar and Stepanov that
such reactions were normal following an abortion. Gaydar and
Stepanov returned home without having seen a doctor that day.
On the morning of May 9, Gaydar began experiencing severe
pain in her abdomen. She was unable to get out of bed and was
nauseated. Stepanov took Gaydar to the emergency room at Pavia
Hospital where she was initially diagnosed as suffering from septic
shock, which the emergency room doctors attributed to her abortion.
Dr. Natalio Bayonet, a gynecologist on staff at the hospital,
arrived to treat Gaydar. After reviewing a sonogram, he diagnosed
her as suffering from a ruptured ectopic pregnancy.2 Gaydar was
2
An ectopic pregnancy is a form of pregnancy in which
implantation of the fertilized egg occurs outside of the uterus,
oftentimes in one of the fallopian tubes.
-3-
stabilized in the emergency room and given a series of blood
transfusions, after which Dr. Bayonet performed emergency surgery
on her, extracting the remains of the ruptured ectopic pregnancy
and removing her right fallopian tube. Gaydar was hospitalized for
seven days following the surgery, five days of which were spent in
the intensive care unit. As a result of the rupture and the
surgery, Gaydar now has only one healthy fallopian tube and also
has a scar on her abdomen.
Gaydar and Stepanov3 brought a diversity action against
the clinic, Dr. Hector Ortiz-Perez,4 the owner of the clinic and
the doctor who allegedly performed the attempted abortion, and the
clinic's insurance carrier, Sindicato de Aseguradores para la
Suscripcion Conujunta de Seguro de Responsabilidad Medico-
Hospitalaria ("SIMED"). Gaydar alleged, inter alia, that the
clinic and Dr. Ortiz-Perez negligently failed to detect her ectopic
pregnancy on April 24 and May 5, thereby leading to the rupture of
her fallopian tube and her need for emergency surgery on May 9. At
trial, Gaydar called Dr. Jose Rodriguez as an expert witness. He
testified that the clinic's conduct varied from the applicable
standard of care when its employees failed to give Gaydar any
3
Gaydar and Stepanov are married. Other plaintiffs included
Gaydar's mother, Ludmilla, her brother Oleg, and her sisters Daria
and Julia. Prior to trial, all plaintiffs except Gaydar and
Stepanov dismissed their claims voluntarily.
4
The plaintiffs also named Iris Maldonado, Dr. Ortiz-Perez's
wife, and their conjugal partnership as defendants.
-4-
laboratory tests, including a pregnancy test, prior to the
attempted abortion. Dr. Rodriguez also testified that the clinic
employees with whom Gaydar spoke on May 5 should have called a
doctor to examine her, given her symptoms. As part of her case-in-
chief, Gaydar also called Dr. Bayonet, the gynecologist who
performed her emergency surgery at Pavia Hospital. We discuss his
testimony more fully in Part II.A, infra. In opposition, the
defendants called Dr. Carlos Roure, who testified that there was
nothing wrong with the care Gaydar received on April 24 and May 5
at the clinic because her symptoms did not indicate the presence of
an ectopic pregnancy. After the presentation of evidence, the jury
returned a verdict finding the defendants jointly and severally
liable to Gaydar for $550,000 and to Stepanov for $75,000. The
defendants now appeal from the entry of judgment on that verdict.
II.
The defendants allege a series of trial errors: (1) the
district court erred in permitting Dr. Bayonet, listed by the
plaintiffs as a witness who would testify about his treatment of
Gaydar, to also testify as an expert witness; (2) the district
court should have excluded plaintiffs' expert witness, Dr. Jose
Rodriguez, because he was not a gynecologist; (3) the district
court showed bias against the defendants and abortion clinics; and
(4) Dr. Rodriguez exceeded the bounds of his expert knowledge when
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he testified that medical records had been altered. We address
these arguments in turn.
A. Inappropriate Expert Testimony
1. Dr. Bayonet's Testimony
The testimony at issue involved colloquies between Dr.
Bayonet and plaintiffs' counsel on direct examination, and
subsequently between Dr. Bayonet and defendants' counsel on cross-
examination, as well as some questions posed by the Court. On
direct examination, after Dr. Bayonet answered a series of
questions regarding Gaydar's condition in the emergency room, her
eventual diagnosis, and her emergency surgery, Gaydar's counsel
began the following exchange:
Q: Before she was taken to Pavia, what type
of exams could have been performed on her to
detect the ectopic pregnancy?
MS. DIEPA [Defendants' counsel]: Objection.
Way beyond the scope.
THE COURT: Why do you say it is beyond the
scope? So what. He's a physician. He is a
gynecologist. He can answer those questions
perfectly. I don't see the problem with this.
Overruled.
MR. MIRANDA [Defendants' co-counsel]: And
then, Your Honor, he has been offered to
render testimony on his treatment of this lady
at the time of the treatment, not before.
THE COURT: It doesn't matter. Go ahead.
[DR. BAYONET]: Can you repeat the question,
please?
-6-
Q: First of all, was it possible before May 9
when she was taken to the Pavia Hospital,
whether it was possible to detect that
[Gaydar] had developed an ectopic pregnancy?
A: Well, certainly a positive pregnancy test
is usually done. You could probably have done
an ultrasound examination. And this would
probably have detected either a pregnancy in
the tube or a dual pregnancy.5 But I wasn't
there, so I don't know what standard
procedures they do in the facility where the
abortion was done.
This was the extent of this line of inquiry of Dr. Bayonet on
direct examination by Gaydar's counsel. At the end of the cross-
examination of Dr. Bayonet, defendants' counsel had this exchange
with him:
Q: And when [Gaydar] went to Clinica on April
24, 2000, she was approximately five weeks
[pregnant]?
A: Yes.
Q: Is it possible to palpate an ectopic
pregnancy five weeks old with no other signs
or symptoms?
A: Well, if you do a real good pelvic exam,
perhaps you could, but it could be easily
missed.
The defendants argue on appeal that the court erred in
overruling their "beyond the scope" objection during the direct
examination of Dr. Bayonet because this objection advised the court
that the questions posed by Gaydar's counsel required Dr. Bayonet
5
A dual pregnancy is a pregnancy in which one embryo gestates
in the uterus while another embryo gestates in the fallopian tube.
-7-
to provide expert testimony when he was only called as a fact
witness. The defendants also contend that the court exacerbated
its initial error by asking Dr. Bayonet a number of questions that
also called for the testimony of an expert witness. This
questioning came after defendants' counsel had completed the cross-
examination of Dr. Bayonet with the inquiry, quoted above, about
the possibility of missing, during a pelvic exam, an ectopic
pregnancy at five weeks gestation. The judge then immediately
started his own line of questioning, which we set forth fully:
THE COURT: Let me ask you something, Doctor,
myself, because I have doubt. If you had been
called -- this is hypothetical, of course. If
you had been called to make this abortion
yourself, what would you have considered doing
under the circumstances in April? What would
be the right thing to do?
THE WITNESS [Dr. Bayonet]: Well, I'm speaking
from the point of view of a gynecologist.
THE COURT: Sure.
THE WITNESS: Number one, I would have
verified that the pregnancy test was positive.
If you suspect an ectopic pregnancy, perhaps
you could do -- if your pelvic exam
demonstrated an adnexal mass, then probably an
ultrasound would be in order. If the
ultrasound demonstrated an intrauterine
pregnancy, then there is no need to go any
further, and you could go ahead and do the
abortion.
A dual pregnancy would s[h]ow an
ectopic pregnancy in the tube and/or in the
uterus with a gestational sac and a fetal
pole. In that case you could go ahead and do
the abortion if you had that information. If
you had an ultrasound, that would help in
-8-
order to establish whether this pregnancy is
in the uterus or not.
THE COURT: Okay. Would you take a look at
[Gaydar's medical record from Clinica on April
24], if you are so kind, and let me know
whether that information was developed by the
physician.
THE WITNESS: The record -- I don't see any
laboratories here. There is no laboratory
indicating that she has a positive pregnancy
test. It is probably just by history that she
had her last period in March 5, 2000. But I
can't see any evidence of a pregnancy test.
THE COURT: What about --
THE WITNESS: Also there is no mention of any
ultrasound or anything like that.
THE COURT: Okay. Thank you.
MS. DIEPA [Defendants' Counsel]: Your Honor,
may we ask a few questions regarding that last
line of testimony[?]
THE COURT: Sure.
BY MS. DIEPA:
Q: Doctor, I'm showing you -- you have in
your hands . . . the original records from
Clinica Gineco-Quirurgica, and I direct your
attention to the line where it says "ovaries
and adnexa." Are you there, Doctor? Isn't it
a fact that it says, "no masses palpable"?
A: It said "free, no tenderness. No masses
palpable."
Q: And you just testified here that an
ultrasound will be appropriate if the
physicians palpate a mass; am I correct?
A: Yes, that would be an indication of that.
-9-
THE COURT: Doctor, is the information on that
record complete for you to decide whether this
doctor did the right thing?
THE WITNESS: Well, he says that he didn't
find any masses. He says that there was no
tenderness in the adnexa. He says that the
uterus was five weeks gestational size. From
what it said here in this record, all that I
can say is that probably he suspected that
there was an intrauterine pregnancy.
MS. DIEPA [Defendants' Counsel]: We have no
further questions, Your Honor.
THE COURT: Was that enough to go ahead with
the abortion without more?
THE WITNESS: I would have liked to see a
pregnancy test, number one. I know in these
clinics they don't do other tests.
THE COURT: I'm not asking you about what they
do in the clinics. I'm asking the
gynecologist, Dr. Bayonet, would you have gone
ahead with this abortion under those
circumstances.
THE WITNESS: No, I would not.
The defendants never raised any objections to the court's
questions.
2. Plain Error Review.
In objecting to plaintiffs' question to Dr. Bayonet about
the tests that the abortion clinic could have performed to detect
Gaydar's ectopic pregnancy, the defendants never explained to the
district court the argument that they now make on appeal – namely,
that such a question converted Dr. Bayonet from a fact witness to
an expert witness, and hence ran afoul of Fed. R. Evid. 701 and
-10-
Fed. R. Civ. P. 26 (requiring the designation of expert witnesses
prior to trial).6 Therefore, even if the question posed to Dr.
Bayonet by plaintiffs' counsel called for expert testimony (a
question we do not decide), the defendants did not preserve their
objection to this question. Moreover, defendants cannot object to
any expert witness questions posed by the court to Dr. Bayonet
because defendants adopted Dr. Bayonet as an expert witness in
their cross-examination of him after the questions posed by
plaintiffs' counsel and the court. Hence, we review the argument
about the testimony of Dr. Bayonet only for plain error.7
6
Fed. R. Evid. 701 provides:
If the witness is not testifying as an expert, the
witness' testimony in the form of opinions or inferences
is limited to those opinions or inferences which are (a)
rationally based on the perception of the witness, and
(b) helpful to a clear understanding of the witness'
testimony or the determination of a fact in issue, and
(c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.
Fed. R. Civ. P. 26(a)(2) provides in relevant part:
(A) In addition to the disclosures required by paragraph
(1), a party shall disclose to other parties the identity
of any person who may be used at trial to present
evidence under Rules 702, 703, or 705 of the Federal
Rules of Evidence.
7
I have set forth here the respected views of my two
colleagues on the reasons for plain error review of the entire
colloquy with Dr. Bayonet. I view the situation somewhat
differently, believing that defendants adequately apprised the
court of the basis for their objection to the question from
plaintiffs' counsel to Dr. Bayonet about the tests that the
abortion clinic could have performed, and that the court erred in
overruling their objection. Hence, I would subject this ruling to
harmless error review. I also disagree that defendants adopted Dr.
-11-
To demonstrate plain error, the defendants must show "(1)
an error was committed; (2) the error was 'plain' (i.e. obvious and
clear under current law); (3) the error was prejudicial (i.e.
affected substantial rights); and (4) review is needed to prevent
a miscarriage of justice." Smith v. Kmart Corp., 177 F.3d 19, 26
(1st Cir. 1999). We will reverse only if the error "seriously
affected the fairness, integrity or public reputation of the
judicial proceedings." Id. (quoting Coastal Fuels of Puerto Rico,
Inc. v. Caribbean Petroleum Corp., 79 F.3d 182, 189 (1st Cir.),
cert. denied, 519 U.S. 927 (1996)). We apply the plain error
doctrine "stringently" in civil cases. Trull v. Volkswagen of Am.,
Inc., 320 F.3d 1, 6 (1st Cir. 2002). Without suggesting that there
was any error in the court's ruling on the testimony of Dr.
Bayonet, we focus on the prejudice element of the plain error
doctrine.
Bayonet as an expert witness, believing that their questions to him
were prompted by the court's decision to allow Dr. Bayonet to offer
expert testimony. Nevertheless, I agree that plain error review
applies to the questions posed by the court because the defendants
were required to object separately to the court's questions
pursuant to Rule 614, which provides that "objections to . . .
interrogation by [the court] may be made at the time or at the next
available opportunity when the jury is not present." Fed. R. Evid.
614(c). Defendants never made such an objection. In the end,
however, the differing views of my colleagues and me on these
procedural niceties do not matter. Even where I would apply
harmless error review, I find no prejudice justifying a new trial.
I further agree with my colleagues on their application of plain
error review to the court's questioning of Dr. Bayonet. Hence we
focus on the prejudice element of plain error review in evaluating
Dr. Bayonet's testimony.
-12-
Even though Dr. Bayonet's testimony supported the
plaintiffs' theory of the case, including the testimony objected to
by defendants, the defendants immediately established through
cross-examination of Dr. Bayonet that it would be easy to miss an
ectopic pregnancy at five weeks through a pelvic exam. The
defendants also used Dr. Bayonet's training and experience as a
gynecologist for their own benefit with their questions to him
after the inquiries of the court. Moreover, Dr. Bayonet's opinion
testimony was only a brief supplement to the testimony of Dr.
Rodriguez, plaintiffs' expert, who testified at length that before
performing the abortion, the doctor at the clinic should have
ordered a number of laboratory tests, including a CBC (Complete
Blood Count) test, pregnancy test, and urine test. He also
testified that Gaydar should have been referred to a doctor on May
5 when she returned to the clinic complaining of abdominal pains
and pregnancy-related symptoms. In Dr. Rodriguez's opinion, if a
doctor had examined Gaydar on May 5, he reasonably could have
detected her ectopic pregnancy.
In opposition, defendants' expert, Dr. Roure, testified
that Gaydar's ectopic pregnancy could not have been discovered on
the day she went in for her abortion because the fetus was too
small and would not have been noticed during the course of a
routine pelvic exam. He also stated that on neither April 24 nor
May 5 did Gaydar present symptoms of an ectopic pregnancy that
-13-
would have prompted a doctor to order a non-routine test, such as
a sonogram, that may have detected the pregnancy in the fallopian
tube.
Viewed in context, the testimony Dr. Bayonet gave in
response to plaintiffs' questions and those of the court was
minimal in comparison to the substantial testimony given by Dr.
Rodriguez and Dr. Roure. Additionally, Dr. Bayonet's response --
that he believed a positive pregnancy test is usually done and that
an ultrasound could probably have been done that may have detected
the ectopic pregnancy -- did not specifically indict the
defendants' procedures or choices. On cross-examination, as noted,
Dr. Bayonet offered some opinion testimony that was helpful to
defendants. We are confident, therefore, that his limited opinion
testimony in response to plaintiffs' question and the questions
posed by the court did not affect the substantial rights of the
parties and, therefore, did not rise to the level of prejudice
required by plain error review.
B. Judicial Bias
In a related argument, the defendants contend that the
district court engaged in improper "judicial activism which
displayed a predisposition and bias in favor of the Plaintiffs and
against abortion clinics, such as the defendants [sic] facility."
Defendants suggest that this bias was illustrated in the court's
questioning of Dr. Bayonet, and also in a number of comments the
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court made to defendants' counsel during sidebars. In these
comments, the court suggested to defendants' counsel that the
clinic had committed negligence and should have settled the case
prior to trial.8
The defendants never raised this bias argument with the
district court. See Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d
848, 857 (1st Cir. 1998) ("Claims of judicial partiality must be
raised at the earliest moment that a litigant becomes cognizant of
the purported bias, and certainly not for the first time on
appeal."). Therefore, we also review this contention only for
plain error.
It is within the court's discretion to question a
witness. See Fed. R. Evid. 614(b). The questions themselves were
phrased in a neutral manner. The judge permitted follow-up cross-
examination. The comments of concern, while reflecting skepticism
about defendants' theories and evidence, were made only at sidebar.
See Rodriguez-Hernandez, 132 F.3d at 857 (dismissing defendants'
argument of judicial bias and citing fact that allegedly biased
comments were made away from the jury). In his jury instructions,
the judge specifically instructed the jury that "if you felt that
8
For example, at sidebar, the court told Ms. Diepa,
defendants' counsel: "I think you should have settled this case.
Let me tell you, you have a big problem on your hands." Later,
during that same sidebar, the court stated to Ms. Diepa: "Don't be
surprised by the kind of verdict that you are going to get in this
case."
-15-
I became impatient with the attorneys at some point in time or that
I scolded them or that I had some sort of colloquy with them, you
should not be influenced by that." We credit the value of such
instructions on plain error review. United States v. Houlihan, 92
F.3d 1271, 1286 (1st Cir. 1996) (concluding that absent some
evidence that the jurors ignored those instructions, "the trial
court's instructions . . . precluded a finding of plain error").
We find no plain error warranting a new trial.
C. Qualifications of Plaintiffs' Expert Witness
In their pre-trial disclosures, the plaintiffs designated
Dr. Jose Rodriguez Crespo as their expert witness. Dr. Rodriguez
is a medical doctor and general practitioner who acknowledged that
he was not a specialist in gynecology or obstetrics. Defendants
filed a motion in limine to exclude his testimony, arguing that he
was not qualified to testify as an expert regarding ectopic
pregnancies because he was not a doctor of obstetrics or
gynecology. The court denied the motion, ruling that "the issues
raised [by the defendants] go to the weight of the testimony and
not to the Daubert exclusion of the same." Defendants renewed
their objection at trial, and the judge again denied it. "We
review a trial court's decision to admit or exclude expert
testimony under an abuse of discretion standard." United States v.
Diaz, 300 F.3d 66, 84 (1st Cir. 2002).
-16-
The trial court must determine that the proffered expert
witness is "qualified as an expert by knowledge, skill, experience,
training, or education" before permitting his testimony to be
presented to the jury. Fed. R. Evid. 702. This gatekeeping
function requires the trial court to determine, given the proffered
expert's background, whether the scientific, technical, or other
specialized knowledge he offers "will assist the trier better to
understand a fact in issue." United States v. Alzanki, 54 F.3d
994, 1005 (1st Cir. 1995) (quoting United States v. Sepulveda, 15
F.3d 1161, 1183 (1st Cir. 1993)). The mere fact that Dr. Rodriguez
was not a gynecologist does not mean that he was not qualified to
give expert testimony regarding Gaydar's pregnancy. The proffered
expert physician need not be a specialist in a particular medical
discipline to render expert testimony relating to that discipline.
Mitchell v. United States, 141 F.3d 8, 15 (1st Cir. 1998); Payton
v. Abbott Labs, 780 F.2d 147, 155 (1st Cir. 1985). In fact, it
would have been an abuse of discretion for the court to exclude Dr.
Rodriguez's testimony on the sole basis that his medical speciality
was something other than gynecology or obstetrics. See Holbrook v.
Lykes Bros. S.S. Corp., 80 F.3d 777, 782 (3d Cir. 1996) ("[T]he
district court erred by finding that Dr. Carpenter was not
qualified to render a diagnosis or to discuss the pathology report
because he was not a pathologist, oncologist or expert in
'definitive cancer diagnosis.'"). Although defendants also argued
-17-
that Dr. Rodriguez "had only performed two [pelvic examinations]
since his internship, and he had never palpated an ectopic
pregnancy," we cannot say that, given Dr. Rodriguez's education and
training, the district court abused its discretion in holding that
his testimony would still be helpful to the jury in resolving this
case.
D. Testimony on Record Alteration
The defendants argue that the district court also erred
in permitting Dr. Rodriguez to testify as "a calligraphy expert."
Dr. Rodriguez testified that the copy of Gaydar's medical records
produced by the defendants for trial contained more information
than the copy Gaydar herself received from the clinic after her
abortion. Dr. Rodriguez also testified that the records the clinic
produced for trial appeared to have more than one type of
handwriting on them. He stated that these modifications to the
record were not done in an appropriate manner: "If there is going
to be any alteration or modification made by a doctor or any
medical personnel to a patient's record, to a hospital record or a
record of any medical procedure, it has to be made with the
initials of the person who has made those alterations in order to
keep a record of the alteration that was actually made."
The observations of Dr. Rodriguez regarding Gaydar's
medical records required no expertise in calligraphy. One does not
need expertise in handwriting analysis to recognize the handwriting
-18-
of two different people on the same document. Defendants have
cited absolutely no case law holding otherwise. Dr. Rodriguez was
also qualified to testify about the appropriate procedures for
altering or modifying hospital or patient records. We reject the
contention that Dr. Rodriguez's testimony was improper.
III.
Finding no basis for undoing the work of the jury, we
affirm the entry of judgment on the jury's verdict in favor of
Gaydar and Stepanov.
So ordered.
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