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Boernert v. Respet

June 18, 2009


The opinion of the court was delivered by: Judge Munley


Before the court are plaintiff's motion for delay damages and post-judgment interest (Doc. 76) and defendants' motions for relief from judgment*fn1 (Doc. 79, 82, 99).


This case arose out of a snowmobile accident that occurred at around 8 p.m. on February 29, 2004 at Alpine Mountain Ski Area. On that date, plaintiff, who was director of the Alpine Mountain Ski Patrol, was thrown from a snowmobile he was operating. He flew off the machine and into a tree, shattering his left femur. Plaintiff received treatment for this injury from Defendant Dr. Patrick B. Respet. Dr. Respet performed several surgeries on plaintiff, but his the fracture to his femur had not healed at the time of trial.

On August 11, 2005, plaintiff filed suit in the United States District Court for the Eastern District of Pennsylvania. (See Doc. 1-1). In that complaint, plaintiff alleged negligence, carelessness and/or recklessness against Defendant Alpine Mountain. This conduct, he contended, was the cause of his injuries. On February 16, 2006, plaintiff filed an amended complaint which added Defendants Respet and Orthopaedic Associates of Allentown. (See Doc. 1-17). While plaintiff repeated his charges against Alpine Mountain, he also alleged that the new defendants were negligent, careless and/or reckless in their treatment of his injuries. He contended that Dr. Respet's treatment of his broken femur was negligent, and this negligence prevented a union of the fracture and left him permanently disabled. On January 26, 2006, Judge Anita J. Brody ordered this case transferred to the United States District Court for the Middle District of Pennsylvania. (See Doc 1-19).

After this court denied Defendant Alpine Mountain's motion for summary judgment (Doc. 33) and the court scheduled trial on the matter, the plaintiff settled his case against that defendant. The case then proceeded to trail against Defendants Respet and Orthopaedic Associates of Allentown. After a three-day trial, the jury returned a verdict in the plaintiff's favor. The jury found Defendant Respet negligent in his treatment of plaintiff, and concluded that plaintiff's injuries were the result of this negligence. The jury awarded plaintiff $1,840,564 in damages for past medical expenses, past and future economic harm, and future non-economic damages. After the trial, defendants filed motions for relief from the judgment (Docs. 79, 82), and the plaintiff filed a motion to amend and correct the judgment (Doc. 79) to reflect delay damages and interest. The defendants filed a supplemental motion for summary judgment after the court reporter filed the official transcript in the case. (Doc. 99). The parties then briefed the issues, bringing the case to its present posture Jurisdiction

Plaintiff is a citizen of New Jersey and defendants are either citizens of Pennsylvania or Pennsylvania corporations with their principal place of business in the Commonwealth. The amount in controversy exceeds $75,000. Accordingly, we have jurisdiction pursuant to 42 U.S.C. § 1441.


a. Defendants' Motion

Defendants challenge certain evidentiary rulings made by the court during the trial, as well as the sufficiency of the evidence to support the jury's verdict.

i. Judgment As a Matter of Law

Defendants seek judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50 on several grounds. "Under Rule 50, a court should render judgment as a matter of law when 'a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.'" Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 149 (2000) (quoting Fed. R. Civ. P. 50(a)(1)). The court grants this motion "only if 'viewing the evidence in the light most favorable to the non-movant and giving it the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury could find liability.'" Buskirk v. Apollo Metals, 307 F.3d 160, 166 (3d Cir. 2002) (quoting Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993)). Courts apply the same standard to motions made before the jury verdict pursuant to Rule 50(a) and after the jury verdict made pursuant to Rule 50(b). See McDaniels v. Flick, 59 F.3d 446, 453 (3d Cir. 1995).

a. Failure to Offer Competent Expert Testimony Establishing a Causal Connection Between Dr. Respet's Conduct and Plaintiff's Injuries

Defendants argue that plaintiff's medical expert testified that 5% of injuries similar to plaintiff's do not heal, whatever care the patient received. Because of this testimony, defendants argue, the expert's testimony does not establish that the injuries plaintiff suffered were a result of Dr. Respet's treatment. Thus, plaintiff did not establish causation, one of the elements of his medical malpractice claim, and defendants are entitled to judgment pursuant to Rule 50.

The dispute at trial was largely over the propriety of Dr. Respet's decision in inserting and then removing different screws and rods in his effort to aid the healing of plaintiff's fractured femur. Dr. Irving Ratner testified at trial as an expert on orthopaedic surgery for the plaintiff. (Official Transcript of Proceedings Held on Octomer 29, 2008 (hereinafter "T. Vol. II") at 24). Plaintiff, the doctor testified, had a suffered a fracture of the femur on February 29, 2004. (Id. at 28). Ratner characterized this fracture as "a subtrochanteric fracture," involving the "bone right below the major attachments for the upper muscles of the thigh and the hip." (Id.). The fracture "was a grade four, which means that it was comminuted into more than four or five fragments, and both the medial and the lateral walls were fractured and broken so that there was a lot of loose bone between the head and neck complex and the rest of the fracture." (Id. at 29). The injury was thus "complex" and the fracture a "bad" one. (Id.). Such an injury required "a lot of attention" to insure proper healing. (Id.). A doctor who chose surgery had to be sure that the operation was "done correctly to give the patient the best opportunity to heal the fracture and get on with their life." (Id. at 29-30).

Dr. Respet first treated plaintiff by operating on him and inserting "an intramedullary nail... which he locked by screws that go through the bone and through holes in the plate." (Id. at 30). This "static locking mechanism" was meant to insure that "the bone can't move or rotate because the rod has the screws across that hold it in place and that provides stable fixation." (Id.). A screw inserted near the knee joint protruded into soft tissue on the inside of the knee, and plaintiff complained of pain. (Id.). Dr. Respet performed another operation on April 8, 2004. (Id.). He removed "the bottom screw, essentially releasing the fracture control from the bottom so that the bottom of the thigh bone could rotate or telescope up or down depending on where it was going to go." (Id.). After Dr. Respet performed that operation, the femur "telescoped," moving up so that "fracture fragments were pushed out further to the side, and then ultimately the end of the nail came out through the bottom of the thigh bone and entered into the joint." (Id. at 31). That situation required a third operation where "Dr. Respet reduced the telescoping, corrected the rotation to the best of his ability and put two additional locking screws at the bottom." (Id.). After this procedure, plaintiff's fracture did not seem to heal. (Id.). Plaintiff saw several other doctors thereafter, and underwent various treatments. (Id. at 31-32). At the time of trial, over four years after the accident, another surgeon had discovered that the fracture had not healed. (Id. at 32). Plaintiff continued to use a bone stimulator 24 hours a day in an attempt to promote healing of the fracture. (Id.).

Doctor Ratner offered his opinion on the medical treatment plaintiff received. He testified that all of his opinions were rendered with "a reasonable degree of medical certainty." Dr. Ratner testified that Dr. Respet had deviated from the standard of care in several instances, including his placement of the rod and screw in the initial operation and the removal of the distal screw that protruded too far without replacing it. (Id. at 44-45, 48-49). Dr. Ratner was particularly critical of Dr. Respet's decision to remove the uncomfortable screw without replacing it, only later to pull the bone out again and put new screws in. (Id. at 55). Dr. Ratner explained that such treatment disrupted the healing process and "reduced the chance of good primary healing in this type of fracture." (Id.). While "95 percent of these fractures in this area will heal. There may be some shortening, there may be some angulation, but they heal with intramedullary fixation. Five percent of them or so, the literature varies, will go on to develop a nonuion and have to have a second repair done." (Id.). For a doctor, "if you do it right the first time and you stabilize the fracture and you don't let it move, it will heal and you're in that 95 percent chance of healing." (Id. at 56). Disrupting the healing process, however, can "reduce the healing of the fracture percentages maybe even below 50 percent." (Id.). Dr. Ratner concluded that "that is what happened here." (Id.). "[T]he manipulation of the fracture and the telescoping of the fracture disrupted the normal process of healing and maturation of the callus and led to the development of the nonunion which necessitated further surgery." (Id.). Thus, "[t]he stage was set initially for the nonunion to develop, in my opinion, by what Dr. Respet had to do because of what he didn't do right the first time." (Id. at 57).

To set forth a prima facie case of medical malpractice, "the plaintiff must establish (1) a duty owed by the physician to the plaintiff (2) a breach of duty from the physician to the patient (3) that the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient, and (4) damages suffered by the patient that were a direct result of that harm." Mitzelfelt v. Kamrin, 584 A.2d 888, 892 (Pa. 1990). In addition, a plaintiff must also provide testimony from an expert witness "who will testify, to a reasonable degree of medical certainty, ...

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