Janet Helene MacCuish Individually and As Parent, Natural Guardian, and Next Friend of Damien MacCuish A Minor v. The United States of America, 844 F.2d 733, 10th Cir. (1988)
Janet Helene MacCuish Individually and As Parent, Natural Guardian, and Next Friend of Damien MacCuish A Minor v. The United States of America, 844 F.2d 733, 10th Cir. (1988)
2d 733
Leslie E. Nunn, Nunn & Holden, P.C., Denver, Colo., for plaintiffsappellants.
Robert N. Miller, U.S. Atty., and Henry L. Solano, Asst. U.S. Atty.,
Denver, Colo., for defendant-appellee.
Before LOGAN, STEPHEN H. ANDERSON and TACHA, Circuit
Judges.
STEPHEN H. ANDERSON, Circuit Judge.
This is a medical malpractice case brought under the Federal Tort Claims Act,
28 U.S.C. Secs. 1346(b), 2671 et seq. Plaintiffs/Appellants Janet MacCuish and
her minor son, Damien (hereinafter "MacCuish"), sued the United States for
damages resulting from an allegedly negligent circumcision performed on
Damien shortly after his birth at Fitzsimmons U.S. Army Hospital in Denver,
Colorado. After trial to the court, the district court entered judgment for the
United States, and subsequently denied MacCuish's motion for a new trial.
MacCuish appeals and we affirm.1
BACKGROUND
2
Damien was circumcised shortly after his birth in June, 1981. Several days after
the circumcision was performed, complications were noticed which ultimately
During the trial, both sides presented expert witness testimony. Among the
government's expert witnesses was Dr. Daniel Horn, a urologist who
participated in the decision to perform the Cecil procedure and performed the
first stage of that procedure. On direct examination by the United States, Dr.
Horn was asked his opinion as to the outcome of the Cecil procedure.
MacCuish objected, on the ground that testimony as to the outcome of the
procedure violated the pre-trial order entered in the case, which apparently did
not specifically state that Dr. Horn would testify as to the outcome. The court
overruled the objection and permitted the testimony.
At the conclusion of both parties' cases, the district court held that there was no
basis for finding that the United States acted negligently or with a lack of due
care in the performance of the circumcision. With respect to the propriety of
the Cecil procedure, the court followed the views of Dr. Horn and concluded
that there was no negligence in the decision to perform that procedure. The
court accordingly entered judgment for and awarded costs to the United States.
It denied MacCuish's subsequent motion for a new trial.
MacCuish appeals that denial, raising three arguments: (1) her trial attorney
failed to accept a $50,000 settlement offer made by the United States; (2) the
district court erred in permitting Dr. Horn to testify on the outcome of the Cecil
procedure; and (3) her attorney's conduct at trial amounted to ineffective
assistance of counsel.2
DISCUSSION
6
MacCuish filed an affidavit stating that she had been called to her attorney's
office "approximately two or three months after he had received a settlement
offer from the Defendant." She further stated that she had never been told
previously of the settlement offer and that her attorney "told me I should not
accept it because it was not a 'structured settlement' ". Affidavit of Janet
MacCuish, attached to Appellant's Opening Brief. MacCuish seeks a new trial
in part on the ground that her attorney refused that offer. This argument is
essentially an allegation of ineffective assistance of counsel, which can be
10
MacCuish's remaining argument is that the district court erred in permitting Dr.
Horn to testify as to the outcome of the Cecil procedure. Although the record
before this court does not contain the actual pretrial order, the parties suggest
that, in conformance with Rule 404 of the Local Rules of Practice of the United
States District Court for the District of Colorado, it stated that written
summaries of opinions of expert witnesses would be granted to opposing
counsel within 30 days. Dr. Horn was designated in the pretrial order as one of
the treating medical personnel who would provide expert testimony. MacCuish
asserts that the pretrial order contained no summary of his opinion as to the
outcome of the Cecil procedure he performed.
11
Accordingly, citing Smith v. Ford Motor Co., 626 F.2d 784 (10th Cir.1980),
cert. denied, 450 U.S. 918, 101 S.Ct. 1363, 67 L.Ed.2d 344 (1981), she argues
she was unfairly surprised and prejudiced when Dr. Horn testified as to
outcome. The United States argues alternatively that (1) there was no violation
of the pretrial order; or (2) the district court properly exercised its discretion to
modify the pre-trial order by its ruling permitting Dr. Horn to testify; or (3)
even if it was error to permit Dr. Horn to testify as to outcome, it was harmless
error because it would not have affected the result of the trial.
12
Local Rule 404 designates the form of a pretrial order and specifies that such an
order "will control the subsequent course of this action and the trial."
D.Ct.Colo.R. 404, Appendix C. See also Perry v. Winspur, 782 F.2d 893, 894
(10th Cir.1986); Fed.R.Civ.P. 16. "When there exists a 'properly drawn,
detailed pretrial order, a trial court's determination that certain facts or issues
must [or should not] be excluded from trial on the basis of a pretrial order may
be reversed only if there is an abuse of discretion.' " Smith, 626 F.2d at 795
(quoting Trujillo v. Uniroyal Corp., 608 F.2d 815, 817-18 (10th Cir.1979)
(citations omitted, brackets original)); see also Cannon Oil & Gas Well
Services, Inc. v. Evertson, 836 F.2d 1252, 1256 (10th Cir.1987); Perry v.
Winspur, 782 F.2d at 894. We find no abuse of discretion here.
13
MacCuish relies heavily on Smith, arguing that this case presents the same
circumstances which compelled this court in Smith to remand for a new trial. In
Smith we enumerated the factors relevant to the determination of "whether a
district court has abused its discretion in excluding ... or ... allowing, testimony
not specified in the pretrial order: '(1) the prejudice or surprise in fact of the
party against whom the excluded witnesses would have testified, (2) the ability
of that party to cure the prejudice, (3) the extent to which waiver of the rule
against calling unlisted witnesses would disrupt the orderly and efficient trial of
the case or of other cases in court, and (4) bad faith or willfulness in failing to
comply with the court's order.' " Smith, 626 F.2d at 797 (quoting Meyers v.
Pennypack Woods Home Ownership Ass'n., 559 F.2d 894, 904-05 (3d
Cir.1977)); see also Marino v. Otis Engineering Corp., 839 F.2d 1404, 1411
(10th Cir.1988) ("Our cases show that when a party requests a new trial on the
basis of surprise testimony it must be able to show surprise, prejudice, and an
attempt to cure the prejudice such as a motion for continuance."); Cannon Oil &
Gas Services, Inc., 836 F.2d at 1256 (reiterating Smith factors); Greenwood v.
McDonough Power Equip., Inc., 731 F.2d 690, 697 (10th Cir.1984) ("[T]here
has been a failure to establish that ... [the expert's] testimony was prejudicial.
The ... [plaintiffs] did not move for a continuance nor have they displayed the
manner in which ... [the expert's] observation prejudiced them or what steps
they may have pursued to cure the alleged prejudice.") Applying those factors
to this case, we find no abuse of discretion in the decision to admit Dr. Horn's
testimony on the outcome of the Cecil procedure.
14
First, we are not persuaded that MacCuish in fact was surprised or prejudiced
by the admission of the disputed testimony. MacCuish's complaint alleged that
"[t]he Defendant ... [was] negligent in recommending the circumcision and in
performing the circumcision as well as in the follow-up care and corrective
surgery which was required due to the negligently performed circumcision."
Complaint at p. 2, para. 8. Nonetheless, the focus of MacCuish's evidence at
trial, as well as her argument on appeal, was on the decision to perform the
Cecil procedure. Similarly, the district court held that there was no negligence
in the decision to perform the procedure; the court did not address the question
of whether the procedure was itself negligently performed. Accordingly,
evidence as to the outcome was not essential to MacCuish's case, and its
exclusion would not have altered the district court's conclusion that there was
no negligence in the decision to perform the procedure.
15
16
17
Finally, MacCuish does not seriously argue that the disputed testimony was
offered in bad faith or that it disrupted the orderly and efficient trial of the case.
See Cannon Oil & Gas Services, Inc., 836 F.2d at 1257. We therefore hold that
the district court did not abuse its discretion when it admitted such testimony.
18
For the foregoing reasons, the district court's decision denying MacCuish's
motion for a new trial is AFFIRMED.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.8. The cause is
therefore ordered submitted without oral argument
We also distinguished Smith in Cannon Oil & Gas Services, Inc., 836 F.2d at
1256 by stating:
In Smith the offending testimony was prejudicial because the witness from
whom it was elicited was the only one to provide the evidence at issue.... Here
... [the disputed] testimony was cumulative of that which [two other witnesses]
provided.
Similarly, in this case, Dr. Horn's testimony was not the only source of
evidence relating to the outcome of the Cecil procedure.
In her docketing statement, MacCuish alleged that the district court erred in not
continuing the trial to permit her to present additional medical testimony and