Crowe v. Marchand

United States Court of Appeals
For the First Circuit

No. 07-1463

DENISE CROWE,

Plaintiff, Appellant,

v.

ROBERT C. MARCHAND, M.D.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, Senior U.S. District Judge]

Before

Lipez, Circuit Judge,
Selya, Senior Circuit Judge,
and Howard, Circuit Judge.

Kris Macaruso Marotti, with whom Thomas A. Tarro, III and The
Law Firm of Thomas A. Tarro, III, Esq. were on brief, for
appellant.
Jason C. Preciphs, with whom Roberts, Carroll, Feldstein &
Peirce was on brief, for appellee.

October 19, 2007
 SELYA, Senior Circuit Judge. In this medical malpractice

action, brought under diversity jurisdiction, 28 U.S.C. §

1332(a)(1), plaintiff-appellant Denise Crowe charged an orthopedic

surgeon, defendant-appellee Robert C. Marchand, with negligent

diagnosis and treatment. A jury found in favor of the defendant.

The plaintiff now appeals, complaining of both the admission of

certain expert testimony and the denial of her motion for a new

trial. Discerning no error, we affirm.

The background facts are straightforward. On October 20,

2002, the plaintiff, while in Rhode Island, was involved in a

rollerblading accident. She sustained an injury to her right wrist

and went to the emergency room of a nearby hospital. X-rays were

taken.

The following day, the plaintiff was seen by the

defendant in his private office. After studying the x-ray films,

the defendant diagnosed the plaintiff's injury as a nondisplaced

extraarticular distal radius fracture. He placed her wrist in a

volar splint and advised her to return for further evaluation in a

few weeks.

The plaintiff revisited the defendant's office on

November 5, complaining of swelling and "popping" in her wrist. A

physician's assistant employed by the defendant examined her and

took a new set of x-rays. These studies showed the fracture in

satisfactory alignment but suggested a small widening of the

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scapholunate joint (a finding indicative of possible ligament

damage). A magnetic resonance imaging (MRI) study was conducted

four days later. That study revealed a scapholunate ligament tear

in addition to the fracture.

The defendant saw the plaintiff on November 14. While

his notes suggest that they discussed the possibility of

reconstructing the ligament, he ultimately recommended

"conservative treatment" of the injury and prescribed physical

therapy. Although a course of physical therapy ensued, the

plaintiff continued to complain of persistent pain, edema, and

tightness in the wrist.

As time went by, the physical therapist reported that the

plaintiff was developing reflex sympathetic dystrophy (RSD). This

condition, typically associated with distal radius fractures,

causes pain and stiffness. It can lead to a permanent loss of

function in the affected wrist.

X-rays taken in December again showed a widening of the

scapholunate joint. The defendant, however, was primarily

concerned with the plaintiff's RSD symptomatology. He continued to

prescribe physical therapy, supplemented by antidepressants, in

each of the plaintiff's subsequent visits.

By April of 2003, the plaintiff's RSD symptoms still had

not subsided. She then saw Dr. Edward Akelman, a renowned hand

surgeon. Dr. Akelman operated on the plaintiff's wrist in May of

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that year to repair the ligament tear. This surgery consisted in

part of a scaphocapitate fusion of the wrist, which left the

plaintiff with a permanent loss of half the movement of the wrist

joint.

Displeased by her care at the hands of the defendant, the

plaintiff, a citizen of Kansas, brought suit in Rhode Island's

federal district court. She alleged, in substance, that the

defendant had failed correctly to diagnose and treat the

scapholunate ligament tear. In particular, she calumnized the

defendant's decision to eschew prompt surgical intervention in

favor of treating her injury "conservatively." As she saw matters,

this decision fell below the applicable standard of care and led

directly to the permanent loss of mobility in her wrist and hand.

The defendant denied the material allegations of the complaint and

steadfastly maintained that no negligence had occurred.

Medical malpractice cases often turn into battles between

dueling experts, and this case followed that well-worn path. In an

effort to establish that the defendant had breached his duty of

care, the plaintiff presented the testimony of Dr. Leo Rozmaryn.

Dr. Rozmaryn testified that the ligament tear should have been

operated on quickly and that a "primary repair" of the ligament, if

undertaken within six weeks of the accident, would significantly

have reduced the ensuing loss of motion. Dr. Rozmaryn further

testified that although the defendant had not diagnosed the

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ligament tear until he saw the results of the MRI, that tear was

easily discernible three weeks earlier (in the October 20 x-ray

films).

To counter Dr. Rozmaryn's testimony, the defendant called

his own expert, Dr. Bruce Leslie. The plaintiff objected to Dr.

Leslie's testimony on the ground that the witness's opinions lacked

a reliable foundation. Elaborating, the plaintiff explained that

Dr. Leslie had not reviewed any of the pertinent x-ray or MRI

studies but, rather, had based his opinions on other physicians'

reports of what these studies showed. The district court overruled

the objection, indicating that the witness's failure to scrutinize

the original x-ray and MRI films could be taken up on cross-

examination.

Dr. Leslie testified, in substance, that the defendant

had adhered to the applicable standard of care in the diagnosis and

treatment of the plaintiff's injury. He further opined that, in

light of the plaintiff's incipient RSD, performing a primary repair

of the ligament in the time frame suggested by Dr. Rozmaryn would

have worsened the plaintiff's condition, not ameliorated it.

When all was said and done, the jury returned a take-

nothing verdict. The district court subsequently denied the

plaintiff's motion for a new trial. This timely appeal followed.

The plaintiff's principal argument concerns the district

court's decision to permit Dr. Leslie to testify. She asserts that

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because Dr. Leslie failed to inspect the x-ray and MRI films and

instead relied upon other doctors' reports of what those films

revealed, he lacked a sufficient factual foundation for his opinion

testimony. We examine this assertion.

The Federal Rules of Evidence afford district courts

substantial latitude in the admission or exclusion of opinion

evidence. Consequently, we review a district court's decision

regarding the admissibility vel non of expert testimony solely for

abuse of discretion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136,

143 (1997); United States v. Maxwell, 254 F.3d 21, 25 (1st Cir.

2001).

The touchstone for the admission of expert testimony in

federal court litigation is Federal Rule of Evidence 702. This

rule, by its terms, states that an expert, in order to supply

opinion testimony, must be "qualified . . . by knowledge, skill,

experience, training, or education" and must possess specialized

knowledge that "will assist the trier of fact to understand the

evidence or to determine a fact in issue." Fed. R. Evid. 702. In

addition, the rule requires that such opinion testimony rest on

"sufficient facts or data" and reflect the use of "reliable

principles and methods" appropriate to the expert's field. Id.

These requirements impose a correlative obligation upon

a trial court to serve as a gatekeeper in order to ensure, as a

condition of admissibility, that proffered expert testimony rests

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on a sufficiently trustworthy foundation. Daubert v. Merrell Dow

Pharms., Inc., 509 U.S. 579, 597 (1993). Where, as here, the

factual basis of an expert's testimony is called into question, the

district court must determine whether the testimony has "a reliable

basis" in light of the knowledge and experience of the relevant

discipline. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148 (1999)

(quoting Daubert, 509 U.S. at 592).

In this instance, we conclude that the decision to allow

Dr. Leslie to testify was comfortably within the realm of the

district court's discretion. Dr. Leslie's credentials as an expert

hardly can be questioned: he is a Board-certified orthopedic

surgeon specializing in hand and wrist deformities. By the same

token, the need for expert testimony cannot be gainsaid: expert

testimony is necessary in virtually all medical malpractice cases

to shed light on the applicable standard of care. See, e.g.,

Dunning v. Kerzner, 910 F.2d 1009, 1014 (1st Cir. 1990) (requiring

expert testimony under Rhode Island law); Wilkinson v. Vesey, 110

R.I. 606, 613, 295 A.2d 676, 682 (1972) (same). The real question,

then, is whether Dr. Leslie, in forming his opinions, relied on

"sufficient facts or data." Fed. R. Evid. 702.

In preparation for his court appearance, Dr. Leslie

reviewed the October 20, 2002 emergency room record, a

radiologist's interpretive report regarding the first set of x-

rays, the defendant's interpretive reports anent sundry x-rays as

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well as the MRI, and all of the defendant's office notes (including

those written by the physician's assistant). In addition, he

reviewed the relevant physical therapy records and the records

pertaining to Dr. Akelman's surgical intervention. We believe that

the district court acted within the scope of its discretion in

finding that this extensive investigation fulfilled the "sufficient

facts or data" requirement.

The plaintiff nevertheless argues that Dr. Leslie's

testimony was built on too porous a foundation to satisfy the

imperatives of Rule 702 because the witness consulted x-ray and MRI

reports prepared by others instead of reading the films himself.

We disagree: Dr. Leslie's reliance on the reports was plainly

justified in light of the custom and practice of the medical

profession. Doctors routinely rely on observations reported by

other doctors, see, e.g., Manocchio v. Moran, 919 F.2d 770, 780

(1st Cir. 1990) (stating that "physicians commonly base their

opinions on tests and examinations performed by other physicians"),

and it is unrealistic to expect a physician, as a condition

precedent to offering opinion testimony in a personal injury case,

to have performed every test, procedure, and examination himself.

In apparent recognition of this state of affairs, other courts have

held that an expert's reliance on x-ray reports rather than the

underlying films does not require the exclusion of his testimony.

See, e.g., Dickenson v. Cardiac & Thoracic Surgery of E. Tenn., 388

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F.3d 976, 982 (6th Cir. 2004); Blakeman v. Condorodis, 599 N.E. 2d

776, 778 (Ohio Ct. App. 1991); see also Manocchio, 919 F.2d at 780

(mentioning "the reading of an x-ray by a radiologist" as an

example of when a testifying physician appropriately may rely on

the report of another physician).

Here, moreover, Dr. Leslie testified that orthopedists

customarily form opinions based on medical reports rather than

seeking to verify independently the underlying primary evidence.

Given this testimony, the district court was fully entitled to

conclude that the use of x-ray and MRI reports by the witness had

a reliable basis in the experience of the medical profession.

Daubert, 509 U.S. at 592.

If more were needed — and we doubt that it is — the

plaintiff's objection clashes with Federal Rule of Evidence 703.

That rule specifically authorizes experts to rely on materials

compiled by others as long as those materials are "of a type

reasonably relied upon by experts in the particular field." Rule

703 was enacted in part "to bring the judicial practice into line

with the practice of the experts themselves when not in court."

Fed. R. Evid. 703 advisory committee's notes. Indeed, the drafters

of the rule explicitly contemplated that experts in the medical

field would routinely rely on reports from other medical

professionals. See id.

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 To sum up, the plaintiff's rigid reading of Rule 702 runs

counter both to the Evidence Rules and to the broad latitude given

district courts with respect to the determination of the

admissibility of expert testimony. The reliability inquiry is

case-specific, see Kumho Tire, 526 U.S. at 141, and in the

circumstances at hand, Dr. Leslie's reliance on the x-ray and MRI

reports did not render his testimony either unreliable or

inadmissible.1 Cf. Microfinancial, Inc. v. Premier Holidays

Int'l., Inc., 385 F.3d 72, 80 (1st Cir. 2004) ("Rule 702 is not so

wooden as to demand an intimate level of familiarity with every

component of a transaction or device as a prerequisite to offering

expert testimony.").

This result is well within the mainstream of acceptable

trial practice. Objections of this type, which question the

factual underpinnings of an expert's investigation, often go to the

weight of the proffered testimony, not to its admissibility. See

id. at 81; Int'l Adhesive Coatings Co. v. Bolton Emerson Int'l,

Inc., 851 F.2d 540, 545 (1st Cir. 1988). As such, these matters

are for the jury, not for the court. This is as it should be; the

1
In any event, the plaintiff has not alleged that the x-ray
and MRI reports were in any way inaccurate. The absence of any
material differences between the reports and the underlying studies
would seem to render any error harmless. See Coleman v. De Minico,
730 F.2d 42, 46 (1st Cir. 1984).

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district court's gatekeeping function ought not to be confused with

the jury's responsibility to separate wheat from chaff.2

We need not linger long over the plaintiff's claim that

the district court erred in denying her motion for a new trial. In

the ordinary course, a district court may order a new trial under

Federal Rule of Civil Procedure 59(a) "only if the verdict is

against the law, against the weight of the credible evidence, or

tantamount to a miscarriage of justice." Casillas-Díaz v. Palau,

463 F.3d 77, 81 (1st Cir. 2006). A district court's refusal to

order a new trial under Rule 59(a) is reviewed for abuse of

discretion. Sanchez v. P.R. Oil Co., 37 F.3d 712, 717 (1st Cir.

1994).

In support of her new trial motion, the plaintiff sings

a familiar tune. She suggests that the district court's putative

error in admitting Dr. Leslie's testimony worked a miscarriage of

justice. This is the same mantra that we already have heard and

rejected, and there is no point in embarking on a twice-told tale.

It suffices to say that our earlier finding — that the district

2
An expert's ability to rely on secondary evidence does not
threaten the integrity of the adversary system. That system
provides numerous safeguards against abuse. These include the
ready availability of opportunities for voir dire, the trial
court's exercise of informed discretion, the prospect of vigorous
cross-examination, the right to present contrary evidence, and the
court's instructions to the jury (which typically will cover not
only the jury's right to accept or reject expert testimony but also
the allocation of the burden of proof).

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court acted within its discretion in allowing Dr. Leslie to testify

— requires us to reject this suggestion as well.

In an abundance of caution, we nevertheless have mined

the entire record. The evidence was conflicted, and in large

measure the case came down to which expert — Dr. Leslie or Dr.

Rozmaryn — the jury, properly instructed, found more convincing.

In the absence of any legal error — and the plaintiff has

identified none — we cannot fault the able district judge for

leaving the jury's credibility call in place. We hold, therefore,

that the district court did not abuse its discretion in refusing to

give the plaintiff a second bite at the cherry.

We need go no further. For the reasons elucidated above,

we uphold the judgment of the district court.

Affirmed.

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