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Jersey Const., Inc. v. Pennoni Associates

argued as amended december 20 1993.: September 28, 1993.


Appeal from the United States District Court for the Eastern District of Pennsylvania. D.C. Civil No. 92-1347.

Before: Scirica, Alito, and Seitz, Circuit Judges.

Author: Seitz


SEITZ, Circuit Judge.

Gregory and Pamela Houck, individually, and as the parents and natural guardians of Benjamin Houck (the "Houcks"), appeal the district court's order denying them a new trial and entering judgment for Dr. Denis S. Drummond, Dr. Lee S. Segal, Children's Hospital of Philadelphia, Surgical Associates of the Children's Hospital of Philadelphia, and Children's Surgical Associates ("defendants," unless individual designation is required).*fn1 The district court had diversity jurisdiction under 28 U.S.C. § 1332. This court has jurisdiction over an appeal of the final judgment of the district court under 28 U.S.C. § 1291.

Factual Background

Benjamin Houck ("Ben") was born with a defect that caused his left thigh bone to bow. After his family moved to West Orange, New Jersey, his parents took him to see the defendant, Dr. Denis Drummond, the Chief of Orthopedic Surgery at Children's Hospital of Philadelphia, about correcting his condition.

Defendant Dr. Lee Segal, a post-residency fellow training under Dr. Drummond, first examined Ben and participated in most or all of the meetings with Dr. Drummond thereafter. When Ben was three years old, Dr. Drummond and Dr. Segal performed an osteotomy*fn2 on his left femur to straighten the leg. During the course of the operation, the superficial femoral artery and vein in the leg either ruptured or were cut. Defendant Dr. Henry Lau, a vascular surgeon, required several hours to repair the damage, which turned out to be permanent.

In their complaint the Houcks asserted claims for negligence, lack of informed consent, and fraud against the defendants. More particularly, they claimed that the doctors' negligence in failing to isolate the blood vessels resulted in the injury, that Dr. Drummond did not adequately warn them of the possibility that the vessels could be severed, that they did not consent to Dr. Segal's participation in the operation, and that Dr. Drummond defrauded them by misrepresenting who would perform the surgery.

At the close of the jury trial, the district court delivered its instructions. The instructions referred to the verdict sheet to be used by the jury to record its decision on the claims.

After the district court gave its instructions to the jury, it asked counsel for comments or objections. Houcks' counsel listed ten previously numbered requested instructions without elaboration. The district court responded to each, "I'll stand on the charge."

The jury found for the defendants on all claims. Thereafter, the court denied the Houcks' motion for a new trial. The Houcks appeal the judgment of the district court only to the extent that it is based on the jury's finding in defendants' favor on the informed consent issue (including procedural and evidentiary issues).

Informed Consent Instruction

The Houcks claim on appeal that the district court erred under Pennsylvania law in instructing the jury that it must determine "whether the failure to obtain informed consent was a substantial factor in causing the injuries to plaintiffs." Defendants respond at the outset that the Houcks did not preserve this objection for appeal because they did not reasonably and timely communicate their grievance to the district court. See Fed. R. Civ. P. 51. Because the resolution of the issue is not of ultimate significance, we shall assume without deciding that the objection was preserved and turn to the merits of the issues presented.

The jury instruction attacked by the Houcks reads as follows:

"If you find that there was no such informed consent, then you must determine whether that failure was a substantial factor in causing the injuries."

The Houcks say the "substantial factor" requirement in the instruction is contrary to Pennsylvania law. It is obvious, however, that this instruction made clear to the jury that the causation issue need only be addressed if it first decided that there was no informed consent.

We emphasize at the outset that the jury took the verdict sheet into the jury room with them. The court's initial instruction with respect to the negligence claim made it clear to the jury that there were two questions to be answered on the verdict sheet, viz., whether there was negligence on the part of the defendants and whether it was a substantial factor in causing Ben's injuries.

In contrast, the question on informed consent on the verdict sheet did not refer to any substantial causation requirement. It simply asked whether the two doctors improperly failed to obtain the informed consent of the plaintiffs, to which the jury answered in the negative. We think the court was there employing the "informed consent" language in the same sense that it was used in its instructions to the jury. Consequently, when the jury found in the negative on informed consent, the causation issue became irrelevant. Thus, we are not called upon to decide whether that portion of the instruction was erroneously given here. See Gouse v. Cassel, 532 Pa. 197, 615 A.2d 331 (Pa. 1992).

We, therefore, conclude that there was no reversible error in the controlling portion of the jury instruction.

Admission of the Consent Forms

Preliminarily, the defendants could not find any consent form executed by the Houcks for the March 6 operation. A form was offered by defendants that was represented to be defendants' standard consent form. The Houcks attack the district court's refusal to grant a new trial based on its admission into evidence, over objection, of a blank consent form that was in use at Children's Hospital of Philadelphia during the relevant time period. "Where a motion for a new trial is based on the admissibility of evidence, the 'trial court has great discretion . . . which will not be disturbed on appeal absent a finding of abuse.'" Link v. Mercedes-Benz of North Am., Inc., 788 F.2d 918, 921-22 (3d Cir. 1986), (quoting Kane v. Ford Motor Co., 450 F.2d 315, 316 (3d Cir. 1971)).

The Houcks claim that the blank consent form was irrelevant to establish to whom consent was given. However, the Houcks agreed that one of them executed a consent form for the surgery. Thus, the form was properly admitted as relevant evidence of the contents other than the blanks.

The Houcks also make a relevance objection to the consent form executed by Mr. Houck for the May surgery to remove the pins placed in Benjamin's leg during the March surgery. This form was relevant to impeach Mr. Houck after he denied familiarity with the consent form used by the hospital. The objection is without substance.

The Houcks raise other arguments against the admission of the blank consent forms, but we are unable to locate in the record any indication that these objections were presented for the district court's consideration. As a general rule, we do not consider such objections for the first time on appeal. Althouse v. Resolution Trust Corp., 969 F.2d 1544, 1547 (3d Cir. 1992). We see no basis for making an exception here.

Factual Sufficiency

Finally, the Houcks contend that the jury finding that Dr. Segal did not fail to obtain informed consent, i.e., had a defense to battery, is against the great weight and preponderance of the evidence and that the district court therefore abused its discretion by denying their motion for new trial. The district court should have granted the motion for new trial as to the fact question only if a miscarriage of Justice would have resulted if the verdict were to stand and should not have substituted its judgment for the jury's. EEOC v. Delaware Dep't of Health & Social ...

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