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)

844 F.
2d 733
Janet Helene MacCUISH, Individually and as Parent, Natural

Guardian, and Next Friend of Damien MacCuish, a
minor, Plaintiffs-Appellants,
v.
The UNITED STATES of America, Defendant-Appellee.
No. 85-2588.
United States Court of Appeals,

Tenth Circuit.
April 15, 1988.
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
resulted in the performance of a corrective surgical procedure, known as the

Cecil procedure. MacCuish claims that as a result of the circumcision and
corrective surgery, Damien's penis is deformed, which will cause him physical,
emotional and psychological problems.
3
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
A. Settlement Offer/Incompetence of Counsel.
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
considered with MacCuish's specific ineffective assistance of counsel argument.

8
MacCuish's argument that ineffective assistance of counsel should relieve her of

an adverse judgment "confuses this civil case with a Sixth Amendment based
claim for the re-trial of a criminal case." Luera v. Snyder, 599 F.Supp. 1459,
1465 (D.Colo.1984). This court has previously stated that "the right to counsel
in a civil case is not a matter of constitutional right under the Sixth
Amendment." Cullins v. Crouse, 348 F.2d 887, 889 (10th Cir.1965);3 see also
Sanchez v. United States Postal Service, 785 F.2d 1236, 1237 (5th Cir.1986) ("
[w]e now expressly hold that the sixth amendment right to effective assistance
of counsel does not apply to civil litigation."); Wolfolk v. Rivera, 729 F.2d
1114, 1119 (7th Cir.1984) ("The Sixth Amendment's guarantee of effective
assistance of counsel does not apply in civil cases."); Mekdeci v. Merrell Nat'l.
Laboratories, 711 F.2d 1510, 1522-23 (11th Cir.1983) (" '[T]here is no
constitutional or statutory right to effective assistance of counsel on a civil
case.' ... [A] 'party ... does not have any right to a new trial in a civil suit
because of inadequate counsel, but has as its remedy a suit against the attorney
for malpractice.' ") (quoting Watson v. Moss, 619 F.2d 775, 776 (8th
Cir.1980)); Kushner v. Winterthur Swiss Ins. Co., 620 F.2d 404, 408 (3rd
Cir.1980) ("An aggrieved party in a civil case, involving only private litigants
unlike a defendant in a criminal case, does not have a constitutional right to the
effective assistance of counsel. The remedy in a civil case, in which chosen
counsel is negligent, is an action for malpractice."); United States v. White, 589
F.2d 1283, 1285 n. 4 (5th Cir.1979) ("right to effective assistance of counsel"
has not been extended to any civil proceedings "not analogous to a criminal
prosecution"). Accordingly, MacCuish's appropriate remedy for allegedly
incompetent representation is a malpractice suit against her trial attorney. Any
such incompetence provides no basis for granting her a new trial.
B. Testimony of Dr. Horn.
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
Moreover, evidence as to outcome of the procedure was already before the

court in the form of pictures of Damien's condition after the performance of the
Cecil procedure. The United States' previous expert, Dr. Niefert, a pediatrician,
had already testified without objection as to Damien's current condition. On
cross-examination of MacCuish's expert, Dr. Jarvis, a clinical psychologist, the
United States without objection elicited his opinion as to Damien's condition
after the Cecil procedure. Finally, unlike in Smith, "where the surprise witness's
deposition was never taken due to the misleading description of that witness's
testimony included in the pretrial order," Marino, 839 F.2d at 1411 n. 12,
MacCuish does not argue that her failure to depose Dr. Horn, in contrast to the
other treating physicians whom she did depose, was in any way prompted by
the description of his testimony in the pretrial order. 4 Thus, MacCuish fails to
establish any actual prejudice by the admission of Dr. Horn's testimony as to
the outcome of the procedure he performed.
16
Furthermore, while MacCuish objected to Dr. Horn's testimony, she made no

motion for a continuance at that time nor does she demonstrate other efforts to
cure any alleged prejudice, although she could have made such efforts. See
Marino, 839 F.2d at 1411; LeMaire v. United States, 826 F.2d 949, 953 (10th
Cir.1987); Hull v. Chevron U.S.A., Inc., 812 F.2d 584, 588 (10th Cir.1987);
Greenwood, 731 F.2d at 697; 6A J. Moore, Moore's Federal Practice, p 59.08
(1987).5 She did not attempt to cross-examine Dr. Horn regarding outcome, nor
to recall her own expert to rebut his testimony, and she does not demonstrate
any reason why she could not have done so.
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
MacCuish's docketing statement phrases the issues slightly differently. Any

issues which a plaintiff raises in a docketing statement but does not pursue in
briefs are deemed waived. See Suggs v. State Farm Fire and Cas. Co., 833 F.2d
883, 886 n. 4 (10th Cir.1987); Bledsoe v. Garcia, 742 F.2d 1237, 1244 (10th
Cir.1984). We accordingly address only those issues MacCuish argues in her
briefs
In Cullins, a habeas corpus proceeding in which appellant alleged ineffective

assistance of appointed counsel in a previous habeas proceeding, we
nonetheless considered appellant's ineffective assistance of counsel claim
because we stated that "counsel should be appointed in post conviction matters
when disposition cannot be made summarily on the face of the petition and
record" and that appointed counsel "must be effective and competent." Id. at
889. Cullins is accordingly distinguishable from this case
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
implied that her attorney sought such a continuance. Docketing Statement at 2.

She does not argue in her briefs that she sought a continuance and we find no
evidence in the record that she did so

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)

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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)

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844 F.

Janet Helene MacCUISH, Individually and as Parent, Natural

United States Court of Appeals,

resulted in the performance of a corrective surgical procedure, known as the

A. Settlement Offer/Incompetence of Counsel.

considered with MacCuish's specific ineffective assistance of counsel argument.

MacCuish's argument that ineffective assistance of counsel should relieve her of

B. Testimony of Dr. Horn.

Moreover, evidence as to outcome of the procedure was already before the

Furthermore, while MacCuish objected to Dr. Horn's testimony, she made no

MacCuish's docketing statement phrases the issues slightly differently. Any

In Cullins, a habeas corpus proceeding in which appellant alleged ineffective

implied that her attorney sought such a continuance. Docketing Statement at 2.

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