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Schneider v. Fried

February 18, 2003

ERIC SCHNEIDER, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ANNE B. SCHNEIDER AND THE ESTATE OF ANNE B. SCHNEIDER, APPELLANTS
v.
GORDON W. FRIED, D.O., POCONO CARDIOLOGY ASSOCIATES, P.C. AND ST. LUKE'S HOSPITAL



On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. Civ. No. 98-cv-5878) Magistrate Judge: Honorable Arnold C. Rapoport

Before: Becker, Chief Judge, Roth and Rosenn, Circuit Judges.

The opinion of the court was delivered by: Becker, Chief Judge

PRECEDENTIAL

Argued: December 18, 2002

This is a medical malpractice case predicated on our diversity jurisdiction and brought under Pennsylvania law. Eric Schneider ("Schneider") sued on behalf of the estate of his mother, Anne B. Schneider, alleging that Mrs. Schneider's death resulted from malpractice by defendant Gordon W. Fried, D.O. ("Dr. Fried") that occurred while she was being treated for a heart condition. Mrs. Schneider's estate is also a plaintiff in this case. Plaintiffs appeal from the Magistrate Judge's grant of a dispositive motion at the conclusion of plaintiffs' case after he had excluded the testimony, following a Daubert hearing, of plaintiffs' two medical experts who testified that Dr. Fried violated the applicable standard of care by administering the drug Procardia sublingually to Mrs. Schneider as a pretreatment for an angioplasty.

Both proffered experts, Marc Semigran, M.D. ("Dr. Semigran") and Gregg Reis, M.D. ("Dr. Reis") possessed eminent academic credentials. Dr. Semigran's testimony was excluded because the literature he cited at trial as informing his opinion did not address the use of Procardia to prevent coronary spasm during an angioplasty, the specific use in this case. It also appears that another basis for the exclusion of Dr. Semigran's testimony (a point relied upon heavily by defendants) was that he no longer practiced in the sub-specialty area at issue in the case:

interventional cardiology; an interventional cardiologist performs surgical procedures, while Dr. Semigran had become an invasive cardiologist, who diagnoses and treats heart conditions. The Magistrate Judge excluded the testimony of Dr. Reis because he stated, at one point in his testimony, that he was opining about his own personal standard of care and not the standard of care in the medical field.

As plaintiffs argue, however, the basis of the Magistrate Judge's ruling was undermined by strong countervailing evidence supporting admission of the testimony of both experts. Dr. Semigran, a former interventional cardiologist, testified that his opinion was not based solely on the literature he cited, but also on his broad knowledge of heart conditions and his own experience, albeit as an invasive cardiologist, making recommendations to interventional cardiologists about which drugs to prescribe to patients undergoing angioplasties; indeed, Dr. Semigran was present during surgical procedures performed by interventional cardiologists and would advise the interventional cardiologists throughout those procedures. Likewise, Dr. Reis testified extensively about the standard of care in the medical field and explained in a sworn affidavit that his previous statement to the effect that he could only discuss his own personal standard of care was in response to a question that he misunderstood.

We conclude that the Magistrate Judge abused his discretion in excluding the testimony of both experts. There is no dispute that Dr. Semigran's testimony was based in part on his considerable professional experience, including advising interventional cardiologists during surgical procedures. This makes his testimony about the standard of care reliable, even if the literature he cited was irrelevant.

And in view of his extensive experience working closely with interventional cardiologists, Dr. Semigran is also qualified to give expert testimony, even though he is an invasive cardiologist. We also conclude that Dr. Reis' expert testimony should have been admitted. Dr. Reis gave ample testimony about the standard of care in the medical field before he stated that he could only testify about his own personal standard of care. Since the defendants offer no evidence or explanation to suggest that Dr. Reis did not misunderstand the question, we conclude that Dr. Reis was qualified to give expert testimony. Accordingly the judgment will be reversed and the case remanded for a new trial.

Before addressing the evidentiary issues, we must first take up a challenge to our appellate jurisdiction. Although the notice of appeal to this Court was untimely (a motion for a new trial submitted beyond the ten day period required by Rule 59 of the Federal Rules of Civil Procedure does not toll the period for filing an appeal), we apply the "unique circumstances" doctrine. Under the doctrine, we have jurisdiction to hear the untimely appeal because the late filing was induced by the Magistrate Judge's order, which conferred upon plaintiffs "the right" (albeit impermissibly) to file a second notice of appeal within thirty days of receiving the trial transcript and the plaintiffs relied upon that order.

I.

Anne Schneider was admitted to the Pocono Medical Center on November 10, 1996, where she was diagnosed with unstable angina. Mrs. Schneider's blood pressure was falling, even after intravenous nitroglycerin was initiated, and she was transferred to St. Luke's Hospital, in Bethlehem, Pennsylvania. At that time, a cardiac catheterization was performed by Dr. Fried, revealing that a coronary angioplasty was necessary. Mrs. Schneider was thus scheduled to have an angioplasty performed by Dr. Fried at St. Luke's Hospital. As a pre-treatment, given before undergoing the angioplasty, Dr. Fried administered ten milligrams of the drug Procardia (also known as nifedipine) sublingually (under the tongue). The purpose of the Procardia was to prevent coronary spasm during the angioplasty; a drug administered sublingually is more quickly absorbed into the body and takes effect rapidly.

Soon after the Procardia was administered, Mrs. Schneider's blood pressure decreased rapidly (she became hypotensive). Dr. Fried administered drugs in an attempt to increase her blood pressure. Dr. Fried began the angioplasty some 20 to 30 minutes after Mrs. Schneider initially became hypotensive. The angioplasty was performed, but Mrs. Schneider became unresponsive. An analgesic was administered, but Mrs. Schneider remained seriously hypotensive. The next day, an echocardiogram showed persistent right ventricular dysfunction. In short sequence, Mrs. Schneider developed end-organ dysfunction, including renal failure and progressive cardiogenic shock. Her blood pressure fell and she died on November 13, 1996. The post-mortem exam showed acute myocardial infarction of the right ventricle and left ventricular posterior wall.

Eric Schneider and the estate of Anne Schneider brought suit in the District Court for the Eastern District of Pennsylvania against Dr. Fried, Pocono Cardiology Associates, P.C. and St. Luke's Hospital for medical malpractice. With the consent of the parties and pursuant to 28 U.S.C. S 636(c)(1), this case was heard before a Magistrate Judge. See 28 U.S.C. S 636(c)(1) (providing that upon consent of the parties, a magistrate judge"may conduct any or all proceedings in a jury or non-jury civil matter and order the entry of judgment in the case").

Plaintiffs based the medical malpractice claim on two theories: (1) Dr. Fried violated the applicable standard of care by administering sublingual Procardia to Mrs. Schneider as a pre-treatment for the angioplasty; and (2) he waited too long to perform the angioplasty once Mrs. Schneider became hypotensive. In support of the case, the plaintiffs presented the expert testimony of Doctors Semigran and Reis. As noted above, the Magistrate Judge excluded that testimony.

On April 27, 2001, at the conclusion of the plaintiffs' evidence, the Magistrate Judge granted the defendants' motion to dismiss, alleging that the plaintiffs had not set forth a prima facie case for medical malpractice because they had not presented the testimony of at least one expert who could state with a reasonable degree of medical certainty that the acts of the defendant-physician deviated from the standard of reasonable medical care, and that such deviation was the proximate cause of the harm suffered. Maurer v. Trustees of the University of Pennsylvania, 418 Pa.Super. 510, 516, 614 A.2d 754, 757 (1992) (citing Mitzelfelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d 888, 892 (1990)). The motion was apparently brought pursuant to Rule 50 of the Federal Rules of Civil Procedure.*fn1

The plaintiffs did not file a notice of appeal at that juncture, instead filing a motion for a new trial on May 8, 2001. However, plaintiffs' counsel failed to order a copy of the trial transcript along with the motion for a new trial. See E.D. Pa. Loc. R. Civ. P. 7.1(e) ("Within fourteen (14) days after filing any post-trial motion, the movant shall either (a) order a transcript of the trial by a writing delivered to the Court Reporter Supervisor, or (b) file a verified motion showing good cause to be excused from this requirement. Unless a transcript is thus ordered, or the movant excused from ordering a transcript, the post-trial motion may be dismissed for lack of prosecution.").

Because counsel had failed to order the trial transcript, the Magistrate Judge entered an order on June 29, 2001 denying the plaintiffs' motion for a new trial. At the same time, however, the Magistrate Judge gave the plaintiffs the opportunity to file a second motion for a new trial within thirty days of receiving the trial transcript:

[I]t is hereby ORDERED that Plaintiff 's motion is DENIED with the right of the Plaintiff to bring a Motion for a New Trial together with a Brief in Support of the Motion for a New Trial within thirty (30) days from receipt of the trial transcript.

On July 19, 2001, the defendants filed a praecipe asking the Magistrate Judge to mark the matter closed based on the failure to timely order a copy of the trial transcript. On August 16, 2001, the plaintiffs filed a brief in reply to the praecipe, requesting that they be granted until August 30, 2001 to file the motion for a new trial. On August 30, 2001, the plaintiffs filed a second motion for a new trial, having complied with the Magistrate Judge's order granting them thirty days from receipt of the trial transcript to file a second motion for a new trial (the plaintiffs received the trial transcript on July 30, 2001.) On September 13, 2001, the Magistrate Judge ...


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