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Grussing v. Orthopedic and Sports Medicine, Inc.

United States District Court, E.D. Missouri, Eastern Division

May 1, 2017




         This closed diversity case is before the Court on plaintiff Leslie Grussing's Motion for New Trial pursuant to Rule 59(a)(1)(A), Federal Rules of Civil Procedure. Defendants oppose the motion and it is fully briefed. For the following reasons, the motion will be denied.

         I. Background

         Plaintiff's complaint alleged that defendants Dr. Corey Solman, Jr. and Orthopedic and Sports Medicine, Inc. (collectively referred to as “defendants”) committed medical malpractice by failing to diagnose and treat an infection in her knee following arthroscopic surgery, specifically by failing to test fluid aspirated from her knee on July 18, 2014. As a result of the infection, plaintiff subsequently had to undergo further surgical treatment including total knee replacement.

         The case was tried before a jury on January 30, 2017 through February 3, 2017, when the jury returned a verdict in favor of defendants. Plaintiff timely filed her motion for new trial, which asserts that the Court erred by (1) not sustaining plaintiff's objection to defense counsel's misstatement of the burden of proof in closing argument; (2) allowing defense expert witness Dr. Matthew Matava to testify in violation of Rule 26, Fed. R. Civ. P., as to opinions not previously disclosed and bases for opinions not previously disclosed; and (3) halting plaintiff's cross- examination of Dr. Matava on the issue of whethe r normal-appearing synovial fluid can be infected.[1]Plaintiff also asserts that even if no single individual error warrants a new trial, the cumulative effect of the errors was prejudicial and affected the jury's verdict.

         II. Legal Standard

         “‘[T]he granting or denial of a new trial is a matter of procedure governed by federal law.' Bank of Am., N.A. v. J.B. Hanna, LLC, 766 F.3d 841, 851 (8th Cir. 2014) (alteration in original) (quoting Brown v. Royalty, 535 F.2d 1024, 1027 (8th Cir. 1976)).” Lincoln Composites, Inc. v. Firetrace USA, LLC, 835 F.3d 453, 459 (8th Cir. 2016). It is almost entirely within the discretion of the trial court whether to grant a new trial. See Fed.R.Civ.P. 59(a); Belk v. City of Eldon, 228 F.3d 872, 878 (8th Cir. 2000).

         “A new trial is appropriate when the first trial, through a verdict against the weight of the evidence, an excessive damage award, or legal errors at trial, resulted in a miscarriage of justice.” Gray v. Bicknell, 86 F.3d 1472, 1480 (8th Cir. 1996). The key question is whether a new trial is required in order to avoid a miscarriage of justice. Maxfield v. Cintas Corp., No. 2, 563 F.3d 691, 694 (8th Cir. 2009). “[A] new trial is only an appropriate remedy when an aggrieved party proves prejudice, meaning that the result at trial would have been different if not for the district court's error.” Acuity v. Johnson, 776 F.3d 588, 596 (8th Cir. 2015) (citations omitted).

         III. Discussion

         A. Defense Counsel's Closing Argument on the Burden of Proof

         Plaintiff's first point in support of her new trial motion is that the Court erred in not sustaining plaintiff's objection to defense counsel's misstatement of the burden of proof in closing argument. The defense argument at issue, plaintiff's objection, and the subsequent discussion is as follows:

MR. ELLINGTON [defendants' counsel]: I want to discuss briefly just a few instructions. One of those is the burden of proof. The plaintiff has the burden of proof in this case. As indicated a minute ago, I believe the evidence supports a verdict for Dr. Solman. And we don't have an obligation under the law to prove anything. I don't believe plaintiff has met their burden. I think - but if you are just sitting there and you are not sure, then the law requires that you find in favor of the defendants.
A few other instructions. One of them.
MR. HENDRICKSON [plaintiff's counsel]: Objection, Your Honor, this is a misstatement of the law, “not sure.” THE COURT: Counsel.
MR. ELLINGTON: Your Honor -- THE COURT: Follow the instructions.
MR. ELLINGTON: Yes. And the Court will give you the burden of proof, what that is. More likely than not.
THE COURT: Well, it's in the instruction.
MR. ELLINGTON: Yes, Your Honor.

Tr. of Defs.' Closing Arg., Pl.'s Ex. 1, 3:1-19 (emphasis added) (Doc. 113).[2]

         Plaintiff asserts that the Court did not sustain the objection to defense counsel's argument but rather merely admonished the jury to follow the instructions, and thus allowed a misstatement of the burden of proof to stand. Plaintiff argues that under Missouri law, such a misstatement of the law is prejudicial and requires a new trial, offering citation to Missouri decisions.

         Defendants respond, correctly, that federal law governs the permissible scope of closing argument in a diversity case. Kostelec v. State Farm Fire & Cas. Co., 64 F.3d 1220, 1228 (8th Cir. 1995) (citing cases); Vanskike v. Union Pacific R. Co., 725 F.2d 1146, 1149 (8th Cir. 1984).[3] Under federal law, no error results from closing argument unless the statements made were plainly unwarranted and clearly injurious. Vanskike, 725 F.2d at 1149. In determining whether plaintiff has made the requisite showing of prejudice arising from defense counsel's statement in closing argument, the Court must examine the entire trial. Gilster v. Primebank, 747 F.3d 1007, 1011 (8th Cir. 2014).[4]

         In this case, there was significant discussion of the plaintiff's burden of proof during jury selection. Plaintiff's counsel introduced the topic of the burden of proof and told the venire panel that plaintiff had to prove “we are more likely right than wrong . . . . Just a slight tip of the scales.” Tr. of Pl.'s Voir Dire, 2:20-23 (Doc. 115). Plaintiff's counsel emphasized the “more likely than not” standard and contrasted it to the much higher burden of proof in a criminal case. Id., 2:24-3:11. Several venire members stated they might have difficulty with or disagreed with the applicable “more likely than not” burden of proof, and questions and discussion on the topic ensued. Id., 3:12-4:22. One venire person asked plaintiff's counsel, “[W]hen you say slightly tip the scales, are we talking 51/49 reasonable?” Id., 4:23-25. Plaintiff's counsel stated, “51/49 would do it. And that is the standard that the law says you have to apply. If you believe you need 60-, 70-, 80-percent certainty, then you wouldn't be able to follow that standard.” Id., 5:1-4. The venire person responded, “It is less than what I thought, but I did not realize the margin was that narrow.” Plaintiff's counsel replied, “It is. The law says more likely right than wrong.” Id., 5:5-8.

         Shortly thereafter, the Court informed the venire panel that in a civil case the party who has the burden of proving a fact must prove it by a preponderance or the greater weight of the evidence, that is, to prove it is more likely true than not true, and stated that the jury would be given further instructions on the burden of proof later. Id., 6:2-9. After the jury was selected and the panel was sworn, the Court read initial instructions to the jury, including an instruction describing the burden of proof which stated in part that the party with the burden of proof was required to prove a fact by the greater weight of the evidence, which meant the fact was more likely true than not true.

         After the conclusion of all the evidence and immediately before closing arguments, the Court read the final instructions to the jury. Instruction number five instructed the jury on the burden of proof and informed the jury that “[t]he burden is upon the party who relies upon any such [factual] proposition to cause you to believe that such proposition is more likely to be true than not true.” See Doc. 97 at 6, Instr. No. 5. Instruction number six informed the jury, among other things, that “[l]awyers' statements, arguments, questions, and comments are not evidence.” Id. at 7, Instr. No. 6. The Court cautioned jury that they must remember to follow all of the instructions, and stated that each juror would have a copy of the instructions for use in the jury room. Instruction number one instructed the jury that they must follow all of the Court's instructions. Id. at 1, Instr. No. 1.

         Plaintiff's counsel addressed the issue of the burden of proof in closing argument:

MR. HENDRICKSON: I have to talk to you now about a couple critical instructions. The first one I want to talk about is number five. That's the burden of proof. We're showing you here. These are the instructions you'll get. This is what we talked about all the way back in jury selection. If you believe that the overall weight of the evidence is more likely than true ...

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