The opinion of the court was delivered by: M. Faith Angell United States Magistrate Judge
In this medical malpractice case, Plaintiffs allege that Defendants failed to diagnose and treat a femoral artery occlusion of Plaintiff Tina Thomas' right leg following cardiac catheterization. The matter was tried by jury, before me, in December 2009. On December 29, 2009, the jury returned a verdict in the amount of $5,157,934.00 against Paul M. Coady, M.D. and Lankenau Hospital, finding Dr. Coady seventeen percent (17%) negligent and Lankenau Hospital eighty-three percent (83%) negligent. Presently before this Court are Defendants' Motions For A New Trial, Or In The Alternative, For Remittitur And Renewed Motions For Judgment As A Matter Of Law.*fn1 For the reasons which follow, Defendants' renewed motions for judgment as a matter of law and for a new trial are denied, and Defendants' motions for remittitur are granted.
Plaintiff Tina Thomas is a 45 year old registered nurse with a longstanding history of supraventricular tachycardia. In early 2006, Mrs. Thomas' primary cardiologist, Dr. Pedro Perez, referred her for a cardiac catheterization. After speaking with a former colleague, Dr. Eranga Haththotuwa, a cardiologist who had relocated to Lankenau Hospital, Mrs. Thomas decided to have the procedure done there.
On January 23, 2006, Mrs. Thomas underwent a diagnostic cardiac catheterization at Lankenau Hospital. Dr. Paul Coady was scheduled to cover the cardiac catheterization lab on that date, as was Dr. Ajay Joshi, an interventional cardiology fellow.
When Mrs. Thomas arrived at the cardiac catheterization lab, she was examined and a pre-procedure assessment was done. After Dr. Coady reviewed the procedure and risks with Mrs. Thomas, she was taken to the catheterization suite and given light sedation.
The catheterization procedure was performed by Dr. Joshi under the supervision of Dr. Coady. Dr. Coady was present at the foot of the bed, watching Mrs. Thomas' monitors. Access was obtained through the right groin. A coronary angiography did not show any evidence of coronary artery disease. At the end of the catheterization procedure, a routine femoral arteriogram was performed. After reviewing the arteriogram and consulting with one of his partners (Dr. Sean Janzer), Dr. Coady diagnosed the femoral artery as being in spasm. He directed Dr. Joshi to inject the artery with nitroglycerin to relieve the spasm. Mrs. Thomas was monitored in the holding area and then transferred to the post procedure floor. Carol Richardson, R.N., evaluated Mrs. Thomas on the post procedure floor before her discharge and determined that ambulation protocol had been met.
Three days after her discharge, Mrs. Thomas called Dr. Perez, her treating cardiologist, complaining of pain and weakness in her right leg. Dr. Perez instructed Mrs. Thomas to get an ultrasound of her right leg. Plaintiff saw Dr. Perez on January 27, 2006, to review the results of the ultrasound. After her visit with Dr. Perez, Mrs. Thomas called Dr. Haththotuwa, who in turn spoke to his partner, Dr. Coady.
Mrs. Thomas was seen on February 2, 2006, by Dr. Coady's partner, Dr. Sean Janzer. After additional testing and evaluation, Dr. Janzer determined that Mrs. Thomas had an occlusion of the femoral artery. On February 3, 2006, Dr. Alexander Uribe, a vascular surgeon, performed surgical intervention.
Plaintiffs allege that as a result of the deprivation of blood to Mrs. Thomas' right leg from January 23, 2006 until February 3, 2006, Mrs. Thomas suffered a permanent ischemic injury to her leg, resulting in extreme pain, weakness and fatigue.
While some of the post-trial arguments are overlapping, each motion has a different standard of review.
A. Judgment As A Matter Of Law
Rule 50 of the Federal Rules of Civil Procedure addresses the Court's ability to grant a motion for judgment as a matter of law following a jury trial. Judgment as a matter of law is appropriate only where "a party has been fully heard on an issue during a jury trial and the Court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." Fed.R.Civ.Pro. 50(a)(1).
"In determining whether such a legally sufficient evidentiary basis exists, the Court must review all the evidence in the record and draw all reasonable inferences in favor of the non-moving party. [ . . . ] The Court may not, however, make credibility determination or weigh the evidence - those functions are reserved for the jury. [ . . . ] In sum, a motion for [judgment as a matter of law] 'should be granted 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 reasonably could find liability.' [page citations to caselaw omitted]"
Reynolds v. University of Pennsylvania, CA No. 06-1237, 2010 WL 308980 at *2 (E.D. Pa. January 27, 2010)(citing Reeves v. Sanderson Plumbing Prods, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000) and quoting Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993)).
A Court may grant judgment as a matter of law only if "the record is critically deficient of the minimum quantum of evidence" to sustain a verdict. Acumed LLC v. Advanced Surgical Services, Inc., 561 F.3d 199, 211 (3d Cir. 2009).
The grant of a new trial is governed by Rule 59 of the Federal Rules of Civil Procedure. The Court may grant a new trial after a jury trial "for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed.R.Civ.Pro. 59(a)(1)(A).
"A new trial may be granted 'when the verdict is contrary to the great weight of the evidence; that is where a miscarriage of justice would result if the verdict were to stand' or when the court believes the verdict results from jury confusion."
Brown v. Nutrition Management Svcs Co., CA No. 08-3840, 2010 WL 939935 at * 2 (3d Cir. March 17, 2010)(quoting Pryer v. C.O. 3 Slavic, 251 F.3d 448, 453 (3d Cir. 2001).
Federal law governs the decision of whether a remittitur should be granted in a diversity case. Graziani v. Star C. Trucking, Civ. A. 94-7124, 1996 WL 79975 at *3 n.6 (E.D. Pa. February 22, 1996)(citing Kazan v. Wolinski, 721 F.2d 911, 913 (3d Cir. 1983)), aff'd, 103 F.3d 112 (3d Cir. 1996).
In reviewing a damage award, the trial court must uphold the jury's award if there exists a reasonable basis to do so. However, the court has a responsibility to see that jury awards do not extend beyond all reasonable bounds. Hayes v. Cha, 338 F.Supp.2d 470, 510 (D.N.J. 2004)(citing 3d Circuit caselaw). The Third Circuit has recognized "an increasing appellate trend to review the merits of a damage award, even though the scope of review is limited." Evans v. Port Authority of New York, 273 F.3d 346, 354 (3d Cir. 2001).
The trial court may, in the exercise of its discretion, use its remittitur power to reduce a jury award "only if the verdict is so grossly excessive as to shock the judicial conscience." Williams v. Martin Marietta Alumina, 817 F.2d 1030, 1038 (3d Cir. 1987)(quoting Walters v. Mintec/International, 758 F.2d 73, 80 (3d Cir. 1985)). Remittitur should be set at the "maximum recovery that does not shock the judicial conscience." Evans, 273 F.3d at p. 354 (3d Cir. 2001).
The trial court must make a detailed appraisal of the evidence bearing on damages, and may evaluate the record in light of damage awards rendered in other cases. See Rivera v. Virgin Islands Housing Authority, 854 F.2d 24, 28 (3d Cir. 1988) and Evans, 273 F.3d at 356 (3d Cir. 2001)(affirming the trial court's remittitur decision as the trial court "endeavored to follow [our] instructions, consider similar cases, evaluate the evidence and determine a damages figure that [was] rationally related to [that] evidence, mindful that [t]he determination of that amount may not be precisely calculated.").
A. Defendants Are Not Entitled To Judgment As A Matter of Law
Defendants have renewed their motion for judgment as a matter of law, arguing that the testimony of Plaintiffs' experts exhibited "fundamental contradictions," causing a speculative verdict to be rendered in this case. Brief In Support Of The Motion Of Defendants, Paul M. Coady, M.D. And Cardiovascular Associates Of Southeastern Pennsylvania, For A New Trial Or, In The Alternative, For Remittitur And Renewed Motion For Judgment As A Matter Of Law [Docket Entry No. 149]*fn2 at p. 25. See also Brief In Support Of The Motion Of Defendant, Main Line Hospitals, Inc. d/b/a The Lankenau Hospital For A New Trial Or, In The Alternative For Remittitur And Renewed Motion For Judgment As A Matter Of Law [Docket Entry No. 147]*fn3 at p. 40 ("[T]he testimony of Mrs. Thomas' liability expert witnesses was so contradictory on essential issues that any finding by the jury was likely based upon mere speculation.").
"Mrs. Thomas presented two experts who absolutely contradicted one another on the key issue of this case -- whether a dissection was diagnosable on January 23, 2006. This is vitally important because absent a dissection, the follow-up care provided to Mrs. Thomas following her catheterization was appropriate according to Mrs. Thomas' own experts. Thus, if there was no dissection diagnosable immediately following her procedure, there can be no violation of the standard of care and, therefore, no causation.
In summary, the fundamental issue in this case is whether a dissection was diagnosable on January 23, 2006. One expert says yes; the other said, no you cannot tell. This conflicting, contradictory expert testimony did nothing to assist the jury, and forced the jury to speculate on the ultimate issue in the case. The absolute contradiction in this case regarding whether dissection is seen on the arteriogram is critical as it necessarily precedes the issue of whether the follow-up care breached the standard of care, and it goes directly to whether there was a delay in diagnosis of Plaintiff's post-surgical complications. Having elected to proceed with two experts, Plaintiffs must not present conflicting testimony. Having presented conflicting testimony, the opinion of both experts cancel each other out, and Plaintiffs should not have been permitted to proceed. Rather, judgment as a matter of law was justified and should have been granted." Defendant Lankenau Hospital's Post-Verdict Motion at pp. 43-44.*fn4
Defendants are incorrect. Both Dr. Collier and Dr. Shubrooks testified that Mrs. Thomas' arteriogram showed an area of reduced blood flow after the catheterization caused by either dissection or spasm. See N.T. 12/16/09 at pp. 62, 66 (Testimony of Dr. Shubrooks in which he states that looking at the "area of concern" on the arteriogram, "[t]he differential diagnosis for this narrowing is either dissection or spasm," and that looking at the arteriogram, you can't rule out the diagnosis of dissection.) and N.T. 12/16/09 at p. 219 (Testimony of Dr. Collier in which he states that the arteriogram shows a "defect in the superficial femoral artery," but "you can't really tell from [the arteriogram] if it's a dissection or a spasm.").
Dr. Shubrooks, who was offered and accepted as an expert in interventional and invasive cardiology, opined that given the differential diagnosis, the accepted standard of care required Dr. Coady and Dr. Joshi to follow Mrs. Thomas and do appropriate studies to rule out a dissection before she was discharged from the hospital. Id. at pp. 22, 66, 69, 77, 80. According to Dr. Shubrooks, they also should have alerted the nursing staff who was doing Mrs. Thomas' follow-up, and Mrs. Thomas herself, as to the complication and potential dissection. Id. at pp. 66-68, 81.*fn5
Based upon my review of the evidence, I find that there is no contradiction in the testimony of Plaintiffs' experts, there is sufficient evidence from which a jury reasonably could have found causation, and Defendants are not entitled to judgment as a matter of law on this basis.
B. Defendants Are Not Entitled To A New Trial.
Defendants argue that they are entitled to a new trial for the following reasons: (1) the verdict was against the overwhelming weight of the evidence, (2) juror misconduct; (3) the trial court erred when it refused to instruct the jury that a physician is not a warrantor or guarantor of results; (4) the trial court erred when it refused to instruct the jury that a physician is not liable for mistakes or errors of judgment, nor do they guarantee a result; (5) the trial court erred when it refused to instruct the jury that Dr. Perez' actions were a superceding/intervening cause of Plaintiff's injury; and (6) there is a strong likelihood that the jury verdict was influenced by Plaintiffs' Counsel's improper attempts to inject corporate liability issues into the trial.
1. The Jury Verdict Is Not Against The Weight Of The Evidence
"When the asserted basis for a new trial is that the jury verdict is against the weight of the evidence, 'the district court ought to grant a new trial only when the record shows that the jury's verdict resulted in a miscarriage of justice or where the verdict, on the record, cries out to be overturned or shocks our conscience.' Klein v. Hollings, 992 F.2d 1285, 1290 (3d Cir. 1993); EEOC v. Delaware Dept. Of Health And Social Svcs., 865 F.2d 1408, 1413 (3d Cir. 1989). In making this determination, the Court should consider the character and complexity of the evidence that the jury considered; the Court has less leeway to substitute its judgment for that of the jury where the subject of the litigation is 'easily comprehended by any intelligent layman.' See Lind, 278 F.2d at 88-91."
Gunyup v. Lancaster County, Civil Action No. 06-4315, 2009 WL 541533 at *2 (E.D. Pa. March 3, 2009).
This standard provides due respect for the jury's primary function as a factfinder. Reynolds, 2010 WL 308980 at *3 (E.D. Pa. January 27, 2010).
Defendant Coady argues: "The verdict in this matter was against the clear weight of the evidence. Specifically, when viewed in the light most favorable to the Plaintiffs, the evidence showed, at best, the Dr. Coady made an error in judgment in diagnosing Plaintiff with a spasm as opposed to a dissection on January 23, 2006. Particularly where Plaintiff's own expert, Dr. Collier, conceded that he could not tell from the films as to whether the diminished blood flow was from a spasm or a dissection. (N.T. 12/17/09 p. 13, 17). The jury's liability finding against Dr. Coady was against the clear weight of the evidence."
Defendant Coady's Post-Verdict Motion at p. 6.
Defendant Coady fails to provide a compelling argument that the jury's verdict resulted in a miscarriage of justice, cries out to be overturned or shocks the Court's conscience. Plaintiffs presented evidence that Dr. Coady failed to meet the applicable standard of care when he did not follow up to rule out a dissection in light of his differential diagnosis following Mrs. Thomas' catheterization, and did not advise either the nursing staff nor Mrs. Thomas of the possible complication. The jury was free to accept this evidence and return a verdict in Plaintiffs' favor. As I find that the verdict is not against the weight of the evidence, I will deny Defendant Coady's request for a new trial on this basis.
2. The Court's Failure To Conduct Additional Voir Dire Of The Remaining Jurors After Discharging Juror No. 6 Does Not Warrant A New Trial.
The jury began deliberating on December 23, 2009 at approximately 4:00 p.m. At around 6:00 p.m., the jury requested permission to adjourn for the day, to return on December 29, 2009 to continue their deliberations. This request was granted by the Court, without objection from any Counsel.
On December 29, 2009, the jury reconvened at 9:00 a.m. They sent a question to the Court which was read into the record at approximately 9:15 a.m., asking for copies of Plaintiffs' exhibits related to lost earnings and a life care plan. In responding to the request, I polled the jurors as follows:
"Oh, the one thing I want to do is poll you, if you don't mind. I want to make sure you didn't discuss this matter with anybody else over the period of time."
N.T. 12/29/09 at p. 3. Seven of the eight jurors affirmed that they had not discuss this case with anyone else during the holiday ...