Opinion
No. 5-589 / 04-2072
Filed October 26, 2005
Appeal from the Iowa District Court for Woodbury County, Gary E. Wenell, Judge.
Following an adverse jury verdict, plaintiffs appeal and assert the district court erred in excluding certain evidence. AFFIRMED.
Randall J. Shanks of Shanks Law Firm, Council Bluffs, for appellants.
Loree A. Nelson and Barry G. Vermeer of Gislason Hunter, L.L.P., Des Moines, for appellee.
Heard by Sackett, C.J., and Vogel and Eisenhauer, JJ.
David Waterman died on August 18, 2001, eighty-eight days after being diagnosed with lung cancer. In this medical malpractice action, Mr. Waterman's estate and surviving spouse allege Dr. Lonnie L. Lanferman failed to timely diagnose his lung cancer. A jury returned a verdict in favor of Dr. Lanferman, and the plaintiffs appeal. After considering the arguments of counsel and reviewing the record, we affirm the judgment of the district court.
Background Facts
Mr. Waterman first visited Morningside Family Practice on May 27, 1997. He was initially seen by Dr. Scott F. Gordon. At his initial office visit, Mr. Waterman complained of a cough that produced gray sputum and disclosed a family history of cancer. He was advised to quit smoking. A chest x-ray taken during his initial office visit had some "questionable abnormal findings," according to Dr. Gordon; however, the radiologist who read the film could find no evidence of active disease.
Dr. Lanferman saw Mr. Waterman on all subsequent visits. On November 18, 1999, Mr. Waterman complained of a cough producing blood-streaked mucus ("hemoptysis"). Dr. Lanferman indicated the blood in the mucus was likely caused by "irritation." On December 23, 1999, Mr. Waterman complained of "off and on" "right chest discomfort." Dr. Lanferman noted his patient's hemoptysis had resolved, and noted his right chest discomfort was "most likely musculoskeletal" due to lifting associated with his employment.
On May 15 and May 18, 2001, Mr. Waterman saw Dr. Lanferman, with complaints of right arm pain, pain in the flanks, weight loss, and chronic cough with hemoptysis. In his May 18 office note, Dr. Lanferman stated Mr. Waterman's hemoptysis was a result of a higher than necessary dose of an anticoagulation medicine, which Mr. Waterman required due to a heart valve replacement in 1981. On May 23, 2001, a CT scan revealed two masses in the right upper lobe of the lung. One mass was 3.0 cm in diameter, and the other measured 2.5 cm. This lung cancer had spread to Mr. Waterman's brain, right shoulder, back, and left hip. He died shortly thereafter.
The plaintiffs filed their petition on October 25, 2002. They assert Dr. Lanferman should have referred Mr. Waterman to a specialist for further diagnostic procedures, such as a CT scan or bronchoscopy, after the office visits in late 1999. They argue, had Dr. Lanferman done so, Mr. Waterman's cancer would have been discovered at a stage where he would have had a seventy percent chance of survival.
Dr. Lanferman designated Dr. William S. Shimp as one of his expert witnesses. In a letter to Dr. Lanferman's counsel dated on August 15, 2003, Dr. Shimp asserted that, in November 1999, the largest tumor had a "diameter of 0.76 cm," "might or might not have been visible" in a CT scan, and was "unlikely" to be "seen on bronchoscopy." Dr. Shimp arrived at his figures through extrapolation by (1) assuming Mr. Waterman's tumors doubled in size every twelve weeks, an assumption he described as a "best estimate," and (2) concluding that the time between November 1999 and May 2001 amounted to "a little over six doubling times."
The plaintiffs' expert witness was Dr. Dennis Citrin. In deposition testimony, he stated Dr. Lanferman should have referred Mr. Waterman to a specialist for a CT scan or bronchoscopy in November 1999. He stated that one would be able to identify a tumor of two millimeters in diameter on a CT scan. He further stated that a CT scan would have detected Mr. Waterman's tumors in 1999. When asked by defense counsel about the size of the tumors in 1999, he stated that "to try and ascribe an accurate dimension to it would be entirely speculative."
Following up on this comment, defense counsel asked Dr. Citrin about Dr. Shimp's conclusions about the tumor's size. Dr. Citrin took issue with Dr. Shimp's methodology, stating it had "no scientific basis." He stated (1) there was no basis to determine the rate of a tumor's growth from a single measurement, and (2) there was no basis to conclude cancerous tumors grew at a constant rate. He noted the American Cancer Society described the methodology used by Dr. Shimp as "fundamentally flawed."
Mr. Waterman filed a motion in limine, arguing Dr. Shimp's testimony was inadmissible. While the court had this motion under advisement, on the day of trial, the defense announced it was not calling Dr. Shimp as a witness.
Dr. Citrin testified for the plaintiffs. On cross examination, defense counsel asked whether Dr. Citrin had, in his deposition, stated it would have been "speculative to try and ascribe any dimensions to it." She further asked whether a tumor needed to reach a certain size threshold before it would be detectible by a CT scan, and Dr. Citrin answered in the affirmative. On redirect examination, plaintiffs' counsel started to ask about what he termed "this Dr. Shimp business." Defense counsel asked for a bench conference.
At the conclusion of the bench conference, plaintiffs' counsel resumed redirect examination without mentioning Dr. Shimp's name. During redirect examination, Dr. Citrin explained his "entirely speculative" comment was in response to the disputed methodology. He further testified, in his opinion, Mr. Waterman's tumors would have been detectible by a CT scan with "a reasonable decree of medical probability," even though he would not give precise dimensions for the tumors.
Dr. Lanferman called Dr. Joel Wells as a witness. On direct examination, Dr. Wells indicated he reviewed several depositions before testifying, including Dr. Citrin's. He stated Mr. Waterman did not have cancer in 1999. He further stated Dr. Citrin "admit[ted] that he was speculating as to whether or not Mr. Waterman had cancer in 1999." On cross examination, plaintiffs' counsel and Dr. Wells began a brief exchange about the context of Dr. Citrin's "entirely speculative" statement when defense counsel objected. The district court, after observing that Dr. Shimp was not called to testify, concluded this attempted impeachment was improper and would "lead to confusion and prejudice" under Iowa Rule of Evidence 5.403.
During closing argument, defense counsel used an enlargement of the "entirely speculative" portion of Dr. Citrin's deposition testimony as a visual aid. Plaintiffs' counsel objected, and asked to place the entire deposition page before the jury. The district court overruled the objection. The jury returned a defense verdict, which contained a special finding that Mr. Waterman did not have cancer in November or December 1999. The plaintiffs filed a motion for new trial, which the court overruled. The plaintiffs appeal.
Standard of Review
In this action at law, we review findings of fact for the correction of errors at law. Iowa R. App. P. 6.4.
Regarding a ruling on motion for new trial, our standard of review is premised on the grounds underlying the motion. If the motion claims a legal error by the district court, our review is for the correction of errors at law. Hansen v. Central Iowa Hosp. Corp., 686 N.W.2d 476, 480 (Iowa 2004). If the motion challenges a matter committed to the district court's sound discretion, we review for an abuse of that discretion. Id.
In the present case, the plaintiffs seek a new trial based on the trial court's evidentiary rulings and its restriction of their closing argument. A district court's evidentiary rulings are reviewed for an abuse of discretion. Kessler v. Wal-Mart Stores, Inc., 587 N.W.2d 804, 806 (Iowa Ct.App. 1998). We cannot find an abuse of discretion unless the district court's evidentiary rulings under review are "clearly unreasonable." Id. Similarly, we review a district court's rulings on the scope of closing argument for the abuse of discretion. Lane v. Coe College, 581 N.W.2d 214, 218 (Iowa Ct.App. 1998). Therefore, contrary to plaintiffs' assertions, our review of the issues raised in the plaintiffs' motion is for an abuse of discretion.
Discussion
The plaintiffs argue they were entitled to present the portions of Dr. Citrin's deposition to the jury to adequately explain his "entirely speculative" comment. They cite Iowa Rule of Evidence 5.106( a), which provides:
When an act, declaration, conversation, writing, or recorded statement, or part thereof, is introduced by a party, any other part or any other act, declaration, conversation, writing, or recorded statement is admissible when necessary in the interest of fairness, a clear understanding, or an adequate explanation.
The plaintiffs argue, pursuant to rule 5.106( a), they should have been permitted to give context to the "entirely speculative" remark. They assert the defense had taken this remark out of context and, without the corrective action of placing more details from Dr. Citrin's deposition testimony before the jury, the jury was misled.
After reviewing the record, we disagree. We cannot say the evidence the plaintiffs sought to introduce was necessary to provide "fairness, a clear understanding, or an adequate explanation." Iowa R. Evid. 5.106( a). Because the district court's evidentiary rulings were not "clearly unreasonable," see Kessler, 587 N.W.2d at 806, we conclude the district court did not abuse its discretion.
On their redirect examination of Dr. Citrin, plaintiffs were able to frame his "entirely speculative" remark as being responsive to Dr. Shimp's theories, although they were not permitted to use Dr. Shimp's name. Dr. Citrin further stated he was confident, to a reasonable decree of medical certainty, Mr. Waterman had detectible cancer in late 1999, even if he was unwilling to assign a precise measurement to the tumors. Dr. Citrin, through his own trial testimony, placed his deposition testimony in what the plaintiffs viewed to be its proper context. Furthermore, we cannot say the district court abused its discretion in limiting the plaintiffs' references to Dr. Shimp's opinions, contained within Dr. Citrin's deposition testimony, during plaintiffs' cross examination of Dr. Wells or during closing argument.
The plaintiffs had Dr. Citrin provide an explanation of his "entirely speculative" comments to the jury; thus, they had no need, under rule 5.106( a), to use his deposition testimony for that reason. Any additional use of that deposition testimony would have been cumulative. See Iowa R. Evid. 5.403. Additionally, any further references to Dr. Shimp, a person who was never called to testify, would have created "the danger of unfair prejudice, confusion of the issues, or misleading the jury." Id. Finally, as noted by the district court, "Dr. Citrin was not limited in any way from giving his opinion about the presence of cancer in the plaintiff in 1999 and defendant's breach of the standard of care."
We believe the district court, in its evidentiary rulings, appropriately balanced the competing interests of the parties. The plaintiffs have not shown the district court abused its discretion in overruling their motion for a new trial.
Conclusion
We affirm the judgment of the district court.