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Armstrong v. Dwyer

August 31, 1998


Stapleton, Cowen, and Rendell Circuit Judges

The opinion of the court was delivered by: Cowen, Circuit Judge

On Appeal from the United States District Court for the District of New Jersey

(D.C. No. 93-cv-03016)

Argued June 11, 1998 & Filed August 31, 1998


Plaintiff-appellant Warren Armstrong appeals from the district court's final judgment entered upon the jury's determination that defendant-appellee, William Dwyer, M.D., was not negligent in providing medical services to plaintiff in the course of three surgical operations and did not breach his duty of informed consent. He also appeals from the district court's orders denying his motion for a new trial and affirming the magistrate Judge's order denying his motion to compel Dr. Dwyer to produce all peer review documents pertaining to his treatment of plaintiff. Plaintiff-appellant Emily Armstrong, Armstrong's wife, appeals from the district court's final judgment entered against her on her derivative claim for loss of consortium.*fn1 We will affirm the district court in all respects.


A. Background Facts

On June 20, 1991, plaintiff met with Dr. Eileen Clifford, an internist in practice with plaintiff's then-treating physician, Dr. Richard Oliver.*fn2 Plaintiff complained of recurring abdominal pain, increasing fatigue, and cramping. He also complained of nausea and a decreased appetite. Dr. Clifford's preliminary assessment was that plaintiff had diverticulitis, a disease in which portions of the colon become inflamed. She prescribed a ten-day course of antibiotics and ordered a barium x-ray of plaintiff 's colon. After several days of antibiotic treatment, however, Dr. Oliver referred plaintiff to Dr. Dwyer for a surgical opinion because the radiologist's report suggested the possibility of an abscess in plaintiff's colon.

Plaintiff met with Dr. Dwyer on July 9 and 12, 1991. Dr. Dwyer reviewed plaintiff 's x-ray and determined that plaintiff had marked diverticulitis in several areas in the upper portion of the sigmoid colon and a possible intramural abscess. Based upon this determination, as well as plaintiff 's medical history and the nature of his complaints, Dr. Dwyer recommended that plaintiff undergo surgery. Dr. Dwyer explained to plaintiff that he would remove the infected section of bowel and rejoin the two healthy bowel ends, a procedure known as an anastomosis.

Dr. Dwyer performed the surgery on July 16, 1991. Initially, plaintiff 's condition appeared to improve, and he was discharged from the hospital on July 27, 1991. Three days later, however, Dwyer readmitted plaintiff after plaintiff complained to him about fever and pain. Dr. Dwyer diagnosed plaintiff with peritonitis, an infection in the abdominal cavity, which resulted from a leak in the anastomosis.

Dr. Dwyer performed a second operation on plaintiff on July 31, 1991. Because he found extensive infection and dead tissue in plaintiff 's abdomen during the surgery, he performed a reversible colostomy with an opening or stoma under plaintiff 's left rib cage. Dr. Dwyer left the incision and wound open to heal "by secondary intention" or without horizontal sutures. App. at 114-15. Plaintiff was hospitalized for more than one month.

Plaintiff met several times with Dr. Dwyer during the next few months. Once again, plaintiff 's overall condition appeared to improve, and his colostomy seemed to be functioning well. By November 12, 1991, however, Dr. Dwyer concluded that the stoma was constricting and additional surgery would be necessary.

Dr. Dwyer performed the revisionary procedure on December 2, 1991 on an outpatient basis. On the following day, plaintiff began treatment with Dr. John McConnell, a rectal and colon specialist. Plaintiff never returned to the care of Dr. Dwyer after his revisionary surgery, and he has not undergone any further surgery.

B. Procedural History

Plaintiff filed the instant action on July 14, 1993, asserting medical malpractice and informed consent claims against Dr. Dwyer.*fn3 Plaintiff alleged that Dr. Dwyer provided improper medical care in connection with his hospitalization, surgeries, and surgery after-care.*fn4 As a result of this alleged negligence, plaintiff claimed that he suffered serious physical and psychological injuries and was left with an undesired, irreversible, and poorly functioning colostomy. He also claimed that Dr. Dwyer failed to secure plaintiff's informed consent for the first and second surgical procedures and that he suffered damages as a result of this breach. Plaintiff's wife, Emily Armstrong, filed a loss of consortium claim for losses she allegedly incurred as a result of her husband's alleged injuries.

On October 6, 1994, plaintiff moved for an order "[c]ompelling the defendant William C. Dwyer to produce all documentation that he has received and all responses given to the Peer Review Organization, relating to his treatment of the plaintiff, Warren Armstrong."*fn5 App. at 122-23. Defendant opposed this motion on the grounds that disclosure of this information was prohibited under the Peer Review Improvement Act of 1982 (the Act), Pub. L. No. 97-248, § 143, 96 Stat. 381 (1982) (codified as amended at 42 U.S.C. §§ 1320c to 1320c-22 (1994)), and the so-called self-critical analysis privilege. By consent order dated December 2, 1994, the magistrate Judge ordered that Peer Review Organization of New Jersey (PRO NJ) be permitted to intervene in this matter for the limited purpose of submitting a brief in response to plaintiff 's motion to compel.

On January 26, 1995, the magistrate Judge filed an opinion and order denying plaintiff's motion to compel the production of peer review documents pertaining to Dr. Dwyer. The magistrate Judge held that the documents requested were "absolutely immune from discovery" under the Act because "the responses to PRO inquiries, as well as the inquiries themselves[ ] were generated and created by the PRO . . . ." Magistrate Op. at 9. The magistrate further held that "the documents inadvertently produced by Dr. Oliver are also entitled to the statutory protection against disclosure."*fn6


Because the magistrate denied plaintiff's motion based on the Act, the judge did not consider whether the self-critical analysis privilege would prohibit disclosure of these documents. The district court subsequently entered an order affirming the magistrate Judge's order in all respects.

Plaintiff's claims were tried before the district court and a jury between February 19, 1997 and March 19, 1997. The jury returned a verdict in favor of Dr. Dwyer on all of his claims. The jury concluded that plaintiff failed to demonstrate that Dr. Dwyer breached his duty of informed consent or that he acted negligently in providing medical care to the plaintiff. The district court entered judgment on the jury's verdict on May 22, 1997.

Plaintiff filed a motion for a new trial. Plaintiff argued, inter alia, that the district court abused its discretion:

(1) by denying the jury's request during deliberations for transcripts of depositions; and (2) by submitting to the jury interrogatories that did not require it to make separate determinations regarding each alleged act of medical negligence and each alleged failure by defendant to obtain plaintiff's informed consent prior to performing surgery upon him. The district court denied plaintiff 's motion. This appeal followed.


The district court exercised jurisdiction pursuant to 28 U.S.C. § 1332. This court has appellate jurisdiction of the district court's final judgment pursuant to 28 U.S.C. § 1291.

Our standard of review over the district court's decision not to provide transcripts of depositions to the jury during deliberations is under an abuse of discretion standard. See United States v. Bertoli, 40 F.3d 1384, 1400 (3d Cir. 1994). Likewise, we review the court's formulation of jury interrogatories for abuse of discretion. In re Merritt Logan, Inc., 901 F.2d 349, 367 (3d Cir. 1990). Finally, while we generally review the denial of a motion to compel under the abuse of discretion standard, see Berger v. Edgewater Steel Co., 911 F.2d 911, 916 (3d Cir. 1990) (citations omitted), our standard of review is plenary where the decision is based upon the interpretation of a legal precept. Cf. McAlister v. Sentry Ins. Co., 958 F.2d 550, 552-53 (3d Cir. 1992).


A. Jury's Request for Deposition Transcripts

During the jury's deliberations, the jury sent out the following question to the court:

"We need a clarification on this issue:

Are we entitled to review any or all of the depositions that are in evidence inside the jury room?" App. at 346. After consulting with counsel, the district Judge determined that the jury sought transcripts of depositions, rather than transcripts of the deposition testimony read during trial or a readback of such testimony. Consequently, the district judge told the jury that he would not send the depositions into the jury room because they were not admitted into evidence. The court further instructed the jury that they should rely upon their collective recollection of the depositions that were read into ...

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