The opinion of the court was delivered by: JOEL ROSEN, Magistrate Judge
Presently before the court is the defendant's motion for a new
trial or in the alternative for remittitur pursuant to
Fed.R.Civ. P. 59(a). Also before the court is the plaintiffs' motion to
amend the judgment order to include prejudgment interest pursuant
to Fed.R. Civ. P. 59(e). The court has rarely witnessed a suit
fraught with such complexity, both factual and procedural, as was
the medical malpractice suit brought by Mary I. Hayes and her
husband, Edward J. Hayes. The complexity derived in part from the
difficulty in diagnosing Mrs. Hayes's malady, a diagnosis which
was not obtained until nearly two years following the suit's
inception. The case chronicled an odyssey of epic proportions
borne principally by the Hayes: the lengths to which Mr. and Mrs.
Hayes went to discover the source of Mrs. Hayes's injury and the
suffering that she and her husband endured throughout the
litigation and into today and tomorrow. The jury was apprised of
the Hayes's travails and awarded them $20 million in compensation
for their suffering. The validity of the jury's finding and the
propriety of that award, as well as certain of this court's
evidentiary rulings, are at issue in the instant motions.
After having carefully considered the submissions of the
parties, the trial testimony, and the relevant jurisprudence, the
court shall deny the defendant's motion for a new trial on
liability, grant in part the defendant's motion for a remittitur,
remitting the verdict from $15 million dollars to $10 million
dollars in favor of Mrs. Hayes, and from $5 million dollars to $1
million dollars in favor of Mr. Hayes, and grant in part the
plaintiffs' motion for prejudgment interest. Should the
plaintiffs not accept the court's remittitur, the court shall
grant in part the defendant's motion for a new trial and order a
new trial on damages only.
II. FACTUAL AND PROCEDURAL BACKGROUND
On March 7, 2000, Edward and Mary Hayes filed suit against Dr.
Dong S. Cha alleging that Dr. Cha committed medical malpractice
and failed to supply Mary Hayes with sufficient information to
constitute informed consent in connection with the full face-lift
plastic surgery performed on Mary Hayes on September 22, 1995.
Mr. Hayes asserted a loss of consortium claim. Jurisdiction was
based on diversity of citizenship. The trial in the above matter
occurred on December 1-5 and 8, 2003 and the instant motions
followed. The parties briefed the issues through April 2004. The
defendant objects to the verdict and asserts that a new trial is
warranted on several grounds: (1) that the overwhelming weight of
the evidence negates any reasonable finding of causation between
the 1995 surgery and the October 2001 diagnosis of mycobacterium
fortuitum; (2) that the plaintiffs failed to carry their burden
on informed consent; (3) that the court erred by allowing
cross-examination of Dr. Cha with a $50 check which had not been
produced in discovery, by allowing cross-examination of Dr. Cha
with sterilization standards promulgated in 1998, and by allowing
the plaintiffs to exploit the court's ruling regarding the
defendant's motion in limine to preclude reference to Dr. Cha's
two-month active suspension; and (4) that the jury award shocks
the conscience requiring, at the very least, a new trial on
damages or a remittitur. The plaintiffs oppose the defendant's
motion, asserting that the jury's verdict was reasonable both on
liability and on damages. The plaintiffs further maintain that
the court did not commit error during the trial. These arguments
require a complete review of the evidence presented to the jury.
Beginning with the opening statement through the closing, the
plaintiffs delivered a focused and complete explanation of Mrs.
Hayes's injury. The plaintiffs called Mr. Hayes as their first
witness. Mr. Hayes's testimony outlined the entire theory of the
plaintiffs' case. He was a very credible witness, who observed
not only his wife's illness during the course of their day-to-day
life, but who attended nearly every one of his wife's doctor
appointments with her during the critical period. Mr. Hayes spoke
about their life together and how it has changed since the
surgery. He also spoke knowledgeably about the development of his
wife's illness, their search for the cause, the myriad doctors
and diagnoses and treatments, the final accurate diagnosis of
mycobacterium fortuitum, and the treatment of that illness.
Mr. Hayes, a lawyer who splits his practice between general
corporate representation and professional baseball player
representation, testified about the Hayes's life before the
Our life was good at the time. Her health was good.
We had a very active life. We vacationed generally
twice a year. We would travel to Florida in March
each year for my for the baseball portion of my
practice to meet with clientele in Florida. My wife
would host a party for the players and their parents
at Christmas time each year, we always thought it was
a good idea for them to get together with one
another, for parents to speak to one another. We
would host a picnic every year, it used to be called
the Hayes Annual Picnic on the Fourth of July where
we would have people over. Go out to dinner
regularly. Although I'm not a big gambler, we made it
a habit of going to the casino to see a show or
gamble once a month. We were both very, very active.
She at the time was very active with painting and
sculpting. After she had stopped working, she had
returned to the Moore College of Art and Design for
art, which was something that she always wanted to
do. So, we had a very active life.
(T. 219:7-25). This testimony was corroborated by two of the
Hayes's family friends, Denise Manto and Orlando Terry Anderson.
Ms. Manto, a good friend of the Hayes and the wife of one of the
baseball players whom Mr. Hayes represents, testified that Mary
was the life of the party, very social, an artist, and very
instrumental in getting the local players and their families
together and in supporting them. (T. 411-412, 415). Mr. Anderson
indicated that he was Mary's best friend, and that before the
surgery they would see each other, either singly or with their
spouses, socially about once a week. He also described Mrs. Hayes
as the life of the party. (T. 420).
Mr. Hayes also testified about his wife's health problems
before the surgery, which he described as minimal: "I mean, there
was the problem going through the change where she had
discomfort, hot flashes. She had some acne that came about the
same time as the hot flashes. She had some rheumatoid arthritis
in the past that was particularly evident in her hand, her
fingers, her knuckles had swollen that made painting difficult
for a while. But generally, both of us, thank God, were healthy."
Mr. Hayes further testified about Mrs. Hayes's September 22,
1995, surgery by Dr. Cha, all of which testimony Mrs. Hayes
corroborated on the record. On the date, given the extensive
nature of the full face-lift surgery, Mrs. Hayes was nervous.
Indeed, Dr. Cha had prescribed valium for her to calm her nerves
before the surgery. Mr. Hayes recalled that Mrs. Hayes did not
want to have to wait at the doctor's office for the surgery to
begin, so they were scheduled as the first surgery, early in the
morning, "eight or nine o'clock." (T. 220:15-19). Mrs. Hayes was
not, however, the first surgery performed that day. Upon arrival,
the Hayes were told that there was an emergency liposuction and
they would have to wait. (T. 221:13-16). Mrs. Hayes was not taken
in for surgery until around 11:30 or 12 noon. (T. 221:18-21).
According to Dr. Cha's testimony, his usual practice is to meet
with the patient before the surgery, but Mr. Hayes testified that
Dr. Cha did not meet with the Hayes before the surgery that
morning. (T. 221:22-222:1). During the surgery, however, Dr. Cha
or his anesthetist (Mr. Hayes was not certain which), came to Mr.
Hayes and explained that during the course of the surgery, the
doctor had "noticed a growth" on Mrs. Hayes's nose: "[E]ither Dr.
Cha or his anesthetist came out and said that the doctor during
the course of the surgery had noticed a growth on the bridge of
my wife's nose, that he was convinced it was cancerous and that
he wanted to remove it as part of this process, but that he could
not do it without consent. And obviously, since my wife was
anesthetized at the time, she couldn't give the consent, would I
give the consent. I mean, I was shocked to be told that my wife
had cancer on her nose and said absolutely, do what you need to
do to take it off." (T 222:7-16). Later tests revealed that the
growth was not cancerous. (T. 222:18-19).
After the surgery, Mr. Hayes testified, he attended several of
his wife's post-operative appointments with Dr. Cha. Mr. Hayes
further testified that "[s]hortly after the surgery, she
developed a redness along the left jawline." (T. 223:12-13). He
also recalled an appointment on October 31, 1995, where his wife
had a complaint about her earlobe being swollen and red. Mr.
Hayes testified that he attended one more appointment after the
October 31 appointment and that "[t]here was redness in the jaw"
and "lumps under her neck." (T. 223-24). Dr. Cha stated that such
redness and swelling was not unusual, and he prescribed a cream,
which he sold to Mrs. Hayes. Mr. Hayes testified that his wife
returned to Dr. Cha several times after this last visit that Mr.
Hayes attended. (T. 224).
Mr. Hayes testified that his wife would ask him periodically to
feel the lumps in her skin, but Mr. Hayes did not want to do it
because the skin appeared sore, "it was almost like a brush
burn." (T. 224:22-23). Several months after the surgery, a lump
"opened as a small sore, and it was different in my mind than
what she had been experiencing with the change with a pimple,
this was a sore. And it wouldn't bleed, it would drain, they were
small, and then over time it would close up." (T. 224:23-225:3).
Mr. Hayes testified that the lumps and sores would rise and open
throughout 1996. Mrs. Hayes could almost plan the timing of the
development and opening of the sores. They started out in the
area of her chin, and then spread around her face, finally
involving her chin, neck, cheeks, nose, and forehead. During 1996
and early 1997, Mr. Hayes was not concerned because the lumps and
sores were small and they would drain and close. Moreover, Mrs.
Hayes's estrogen prescription was changing, and the lumps and
sores were then attributed to the estrogen and her menopause. (T.
Mr. Hayes began to be alarmed, however, in the summer of 1997.
At that time, the sores started getting larger. (T. 226). Mr. and
Mrs. Hayes went to see their family doctor, Dr. Glickman, who
said it was "the worst thing he had ever seen," confirming Mr.
Hayes's concerns. (T. 226). Dr. Glickman referred them to Dr.
Abraham, whom they consulted in August 1997. (T. 227:10). Both
Dr. Abraham and Dr. Farber, whom Mrs. Hayes consulted once in
1996, diagnosed her with acne and prescribed antibiotic creams to
put on the wounds. (T. 227:12-15).
Between 1997 and 1998, Mrs. Hayes treated with several doctors,
all with Mr. Hayes's involvement and participation. They visited
Dr. Bondi three times with three different diagnoses: rosacea,
then combination of rosacea and acne, then infected hair
follicles. Mr. Hayes "really didn't have a lot of comfort." (T.
228:4-5). Then were then referred (through a baseball team
doctor) to Dr. Hurley, whom they consulted twice. Dr. Hurley
blamed Mr. Hayes for his wife's malady, indicating that Mr. Hayes
was "stressing his wife out" and that "[he] was causing it." (T.
228:17-18). Mr. Hayes described how he cried after being blamed
for his wife's medical problem. After Dr. Hurley, the Hayes
returned to Dr. Milgraum, the physician who had performed Mrs.
Hayes's eyelid surgery in 1994. He diagnosed her with rosacea.
The next notable event in the Hayes's lives was the spring
training trip to Florida in March 1998. The day before they were
to leave for the trip, a sore on Mrs. Hayes's cheek opened up and
expelled a small piece of green wire that resembled fishing wire.
This was extremely frightening for the Hayes's and painful for
Mrs. Hayes. Mr. Hayes dropped the wire off at Dr. Glickman's
office, and the couple left for the Florida trip the following
day. The Hayes offered a photograph of this sore into evidence,
which the Hayes testified they took only so that Dr. Glickman
would be able to observe the wound before it healed, as they were
in Florida and believed it could close before they returned from
their trip. Mr. Hayes described not only Mrs. Hayes's agony on
this trip, but her seclusion from the usual events with the
baseball players and their wives. (T. 229-31).
Because Mrs. Hayes was still not getting relief from her
problem, Dr. Glickman referred them next to Dr. Manstein at
Jean's Hospital, with whom they consulted twice. Dr. Manstein
performed the first biopsy the results of which were inconclusive
Dr. Manstein suggested that Mrs. Hayes's sores were cause
either by a herpetic condition or possibly by suture abscess. (T.
Finally, in 1999 during a gynecological appointment, Mrs. Hayes
had some open wounds and the gynecologist recommended another
doctor, Dr. Krause. The Hayes's first appointment with Dr. Krause
was in August 1999. Dr. Krause believed that the cause of Mrs.
Hayes's condition could be silicon that had been injected in her
face and was causing the eruptions, but that cutting open her
face would not reveal the silicon. Thus, Dr. Krause started
interlesional injections. (T. 233). Mr. Hayes testified that for
up to a year, "on a regular basis, sometimes weekly, my wife
would be taken back into his operating area, sedated, and he
would inject her face with needles to try to break up what he
believed at that point in time was silicon, at the same time he
was doing some biopsies and sending them out for chemical
analysis to try to find the presence of silicon." (T.
233:23-234:3). This intensive treatment had a radical effect on
Our life had changed dramatically by that point in
time. We did not go out, she both did not like her
appearance during that period of time, also had open
wounds through a good part of that time, and didn't
want to be seen, quite frankly, out. She did not go
out much herself to do things that she had done
before, little things like food shopping, little
things like cooking, which my wife had done before,
she was not doing during this period of time. I mean,
she was sick.
In 2000, Mrs. Hayes started to complain that she felt strangled
by the lumps under her neck, which had continued to be present
throughout the progression of her condition. She was at that
point admitted to the hospital, and Dr. Krause cut her neck open
and pulled the skin down and removed "granuloma." (T. 236:4). She
received some relief from the pain in her neck during that period
of time. Dr. Krause performed many surgical procedures. (T. 236).
Before the diagnosis of mycobacterium fortuitum, he would
sometimes relieve the pressure in her face by inserting tubes
into her face and allowing the sores to drain. Mr. Hayes
described one sore in particular that opened almost down to her
cheek bone and was wide enough to insert a quarter. To relieve
the pain of this sore, Dr. Krause hospitalized Mrs. Hayes and
inserted a tube through the hole and out through the back of Mrs.
Hayes's ear to allow the sore to drain. The jurors observed a
photograph of this particular sore, along with several other
photographs depicting Mrs. Hayes's condition at different times
over the past several years.
In June 2001, the Hayes traveled to the Mayo Clinic, in
Rochester, Minnesota, where they consulted with many specialists.
One of the specialists suggested that Mrs. Hayes had caused these
sores through self-mutilation. Notably, one specialist, whom Dr.
Krause later confirmed was the infectious disease specialist,
opined that the sores looked like some kind of
mycobacterium.*fn1 (T. 327). The doctors at the Mayo Clinic
could not do a test because Mrs. Hayes was on antibiotics, and it
was Mr. Hayes's understanding that antibiotics mask the presence
of mycobacterium. (T. 237). This understanding was later
corroborated by the plaintiffs' expert witnesses. (See e.g.
Dr. Kirby, T. 327-328; Dr. Huitt T. 372-75).
The Hayes's doctors ultimately discovered mycobacterium
fortuitum in October 2001 during a biopsy taken when Mrs. Hayes
was hospitalized for the quarter-sized sore. Dr. Krause then
referred the Hayes to Dr. Rausch. At that point, the doctors
tested the bacteria for resistance and established that there
were three therapeutic drugs that could work on Mrs. Hayes's
particular strain of mycobacterium fortuitum. Treatment was
started using two of them, Amikacin and Cipro. The Amikacin, a
highly toxic antibiotic, requires intravenous injection; thus
doctors inserted a "portacath" in her chest. Amazingly to the
Hayes, within one week of starting the medications, all the sores
on Mrs. Hayes's face started to close. That was unlike any of the
other antibiotic treatments Mrs. Hayes had undergone in the past
years. The treatment lasted approximately forty-three days of
three-hour injections each day. Mr. Hayes would begin the
treatment in the morning before he went to work. The medications
caused severe nausea and lethargy. Mrs. Hayes took Phenergan for
the nausea. It was Mr. Hayes's understanding that Amikacin could
cause deafness, so the doctors tested her hearing regularly. Mr.
Hayes testified that when the doctors noted a loss in hearing,
they took her off of the Amikacin and finished the first round of
antibiotics with Cipro and Rifampin. These were both oral drugs,
taken twice daily. She finished out the first round of
antibiotics and had about a two-month hiatus with no sores.
The sores returned after two months; the Hayes had been told
that this could occur and, indeed, would probably occur. The
doctors told the Hayes that they would know the disease had been
cured when the sores did not return. That had not yet happened by
the time of trial. The Cipro and Rifampin were resumed, in the
spring of 2002, and Mrs. Hayes was treated for another several
months. The wounds again closed as a result of the second round
of treatment. The doctors observed her for a few months and, when
the sores did not return, they took out the portacath.
The sores returned again, but this time after approximately
four or five months. Mr. Hayes took this as progress. But the
disease had not yet been cured. Mrs. Hayes started again on the
Cipro and Rifampin, but this time the sores did not heal,
indicating that the bacteria had become immune to one or both of
these treatments. There was only one medicine left that would be
effective against her bacteria, as revealed in the early
resistance testing: Imipenem (or Pramoxine). She was put on
Pramoxine and Rifampin. Pramoxine was another intravenous drug,
so Mrs. Hayes had to have a pick line inserted in her arm. The
medicine required infusions two times per day for a half-hour.
This antibiotic gave Mrs. Hayes sweats, clamminess, and nausea,
but the nausea wore off after about a half-hour. Prior to trial,
Mrs. Hayes began developing pain in her arm. The doctors did not
detect swelling, which could be evidence of blood clot formation,
but did an ultrasound to be safe. The ultrasound revealed both a
blood clot and a fibrous flap over the pick line, and Mrs. Hayes
was immediately sent into emergency surgery. What the Hayes
believed would be an overnight stay turned into a seven-day
hospital stay. After the surgery, Mrs. Hayes continued the
antibiotic treatment. This was the regimen that Mrs. Hayes was
following at the time of trial.
In addition to the antibiotic treatment, after the
mycobacterium diagnosis, the doctors also treated Mrs. Hayes's
sores with "debridement." Debridement is a medical surgical
procedure in which the doctor would cut out all of the skin that
appeared infected. (T. 236). Also, at a certain point after the
diagnosis, Dr. Krause began to attempt a repair of Mrs. Hayes's
face, to insert something to replace the part of her face that
had been eaten away. Mr. Hayes could not even count the number of
surgeries that his wife underwent, there were so many.
Mr. Hayes then described their lives today:
She is still very lethargic, she's tired most of the
time. Obviously, we have a clock, she's got a
regiment at 6:30 in the morning and she's got a
regiment at 7:30 at night. Our life presently
consists of visiting doctors once a week. She still
does not like the way she looks, so we do not
socialize. We have not vacationed in years. We've
cancelled the spring training trip the last few
years. We have not had the Hayes Family Picnic for
the last couple of years. Her arthritis continues to
give her a problem, so if she's down on the floor
with my grandson, I often find myself helping her get
up. I do the shopping, I do most of the stuff that
needs to be done. While she's gotten better
considerably from this, we still have a way to
go. . . . [Our life is] completely the opposite. My
wife, who was as outgoing a person as I've ever seen,
who loved to socialize, who loved to entertain, who
was the life of the party, is now a recluse. She
lives in our house. Other than my son's wedding and
just recently our granddaughter's christening, she is
not out of the house other than doctor visits. And
what we try to do is we take my grandson with us on
the doctor visits because we stop at the Cherry Hill
Mall on the way back from the doctors, because that's
her one time out of the house. So, we spend an hour
or two in the Cherry Hill Mall. I'm sorry. That's our
(T. 256:2-257:2). The testimony of the Hayes's friends, Mr.
Anderson and Ms. Manto, added that Mr. Hayes should be canonized
for the way that he has supported and cared for Mrs. Hayes
throughout this ordeal. (See e.g. T. 421:12).
The plaintiffs' pictoral presentation was no less consistent or
compelling. It is said that a picture is worth a thousand words;
it would be hard to articulate words sufficient to replace the
force of the pictures entered into evidence in this case. The
Hayes's and their friends' description of the Hayes's hermit-like
retreat from society was quite credible, upon reviewing these
pictures. The oozing, large sores reinforced the witnesses's
testimony that Mrs. Hayes's appearance was aesthetically
unpleasant and that forays away from the home could possibly put
Mrs. Hayes in danger of additional infection from wind or rain or
sun exposure entering through the wounds. Among the pictures, the
plaintiffs submitted as an exhibit a picture of the quarter-size
wound that fully corroborated both Mr. and Mrs. Hayes's
description of the physical pain that Mrs. Hayes endured, as well
as its vast difference from any kind of pimple. Mrs. Hayes
herself also provided evidence of the ordeal she has endured and
continues to endure. The jurors could observe first-hand the
ravages of the disease, which Mrs. Hayes may never defeat.
That testimony became the foundation of the plaintiffs' case,
and no fact or expert witness refuted any of the above
information. Even the defendant's experts did not refute the
above information; rather, they merely attempted to sever the tie
between Mrs. Hayes's complaints beginning just after the surgery
and the actual diagnosis of mycobacterium fortuitum in October
2001. The balance of the plaintiffs' witnesses verified,
expanded, and corroborated Mr. Hayes's testimony.
Mary Hayes took the stand and testified very compellingly and
convincingly about the development of her disease, including the
pain that she has experienced since the surgery, her diagnosis
and treatment, and the change her life has undergone since the
surgery. Among the facts highlighted by her testimony concerned
the plaintiffs' informed consent claim. Mrs. Hayes testified that
she initially consulted Dr. Cha to fix sagging in her neck. She
did not want anything else done. But Dr. Cha advocated for more
surgery in fact, the entire face lift along with more work on
her eyes. She testified that he convinced her to get the full
face lift. She further testified that he did not discuss the risk
of infection, nor did the booklets explaining the procedure
mention infection as a risk of the surgery. Following the
surgery, Mrs. Hayes testified that she visited Dr. Cha several
times, including two or three visits after the October 31 visit.
She complained about the swelling and redness at those visits,
but Dr. Cha told her that such swelling and redness was usual and
it would go down over time. She further confirmed that Dr. Cha
had sold her over-the-counter creams for the swelling.
Dr. Krause also corroborated and elaborated upon Mr. Hayes's
foundation. Dr. Krause testified that he began seeing Mrs. Hayes
on August 9, 1999. At that time, she had multiple scars on her
chin, forehead, and neck, and open abscesses in some of these
areas. (T. 271:4-13). Dr. Krause testified that he had never seen
anything like it before. (T. 271:21-22). Initially, he thought
that she might have been injected with liquid silicon, had
trouble with the silicon, and began to develop granulomas, but he
had only seen such infections in pictures. (T. 272:1-4). His
first course of treatment involved applying Cordran tape, a
cortisone tape that comes in a roll, to the sore areas of her
face. That "seemed to give her some relief." (T. 272:9). Thus, he
then "embarked on a course of injecting her face with cortisone
itself," mixed with novacaine to relieve the pain of the shot,
approximately every two weeks. (T. 272:9-13, 273:18). These
injections continued from "1999 well into 2001." (T. 272:15).
Because Mrs. Hayes complained of intense pain during the
injections, Dr. Krause gave her intravenous sedation and pain
relief during each session. (T. 273:19-22). Dr. Krause further
testified that although she seemed to get some relief, Dr. Krause
did not feel that he was treating the cause of the problem. Thus,
on several occasions he took a biopsy of her skin. Those early
biopsies showed that there was a foreign body, but not what it
Dr. Krause also pursued other avenues for discovering the
source of the infection, including sending the tissue to
colleagues and to institutions. Dr. Krause arranged the Mayo
Clinic visit in 2001 because he had been told that a specialist
practiced there who had the ability to chemically analyze whether
or not silicon was present in Mrs. Hayes's face. (T. 275). The
Mayo Clinic was disappointing not only for Mr. and Mrs. Hayes,
but also for Dr. Krause. Just as Mr. Hayes had earlier testified,
Dr. Krause also testified that one of the doctors who saw Mrs.
Hayes accused her of self-mutilation. Although Dr. Krause could
not see how someone could cause the types of sores that he had
been seeing, but also not wanting to dismiss a specialist's
diagnosis, Dr. Krause testified that he had a frank discussion
with the Hayes about self-mutilation. They emphatically denied it
to him and he continued to look for alternatives, specifically
the possibility that it was a bacterial infection. Dr. Krause
testified that he took Mrs. Hayes to get a biopsy and some
cultures. This time, the culture was retained and monitored by
the lab for two full weeks. The immediate report did not show any
organism, but a few days later, something began to grow. A few
days after that, the lab reported that a mycobacterium had grown
out in the culture. And finally, after two full weeks, the lab
confirmed that it was mycobacterium fortuitum. (T. 276).
Dr. Krause testified that, at the time of trial, his prognosis
was "guarded": "I think I have to be sure that her disease is
quiet for a significantly long period of time before I can try to
do anything to help her further with her facial appearance. What
I'm hoping is that eventually I can go in and operate on her and
add some tissue in the form of either her own tissue or some
other tissue to restore the depressions and scars and things like
that all over her face." (T. 279:24-280:5). The scarring occurs
because "[t]his particular bacteria tunnels through the cutaneous
tissue, that's the fat between the skin and the muscle, and it
destroys that tissue. And then the skin sinks in and compresses
down against the muscle and results in a scar." (T. 280:7-10).
Dr. Krause opined about Dr. Cha and his adherence to the
standard of care required for plastic surgical procedures. Dr.
Krause confirmed unequivocally that, to a reasonable degree of
medical certainty, Dr. Cha had deviated from the required
standard of care and that the deviation caused Mrs. Hayes to
contract the bacterial infection. (T. 280:14-23). Dr. Krause
indicated that Dr. Cha had not only done a "standard face-lift"
but also performed some liposuction, and that "the bacteria was
most likely introduced by the liposuction instruments" and that
"they were probably not properly sterilized ahead of time." (T.
281:1-16). This testimony was reinforced by the Hayes's prior
testimony that Dr. Cha had performed an "emergency liposuction"
just prior to Mrs. Hayes's scheduled surgery, and by the multiple
subsequent witnesses who testified, including Dr. Cha himself,
that Dr. Cha did not follow required sterilization procedures.
These procedures include: (i) wrapping the instruments in tape
that is heat-sensitized to change color if the sterilization
process was properly completed; (ii) utilizing indicator strips
that are placed within the Autoclave*fn2 itself; and (iii)
sending certain material to outside facilities once a month to
assess the Autoclave's effectiveness. Dr. Krause himself had
inspected Dr. Cha's ambulatory surgical facility and the
Autoclave, in the early 1990's as an inspector for an
organization called the "quad A PSF, [the American Association of
Ambulatory Office Facilities for Plastic Surgery] an organization
that inspects ambulatory plastic surgery facilities." (T.
282:19-20, 304:20-23). At the time of Dr. Krause's inspection in
the early 1990's, the appropriate sterilization records were
present. At the time of Mrs. Hayes's operation, the appropriate
records were no longer present, the testing was no longer
Dr. Krause opined that the liposuction instruments canulas
were the most likely source of the infection because they require
a difficult and time-consuming sterilization process including
scrubbing the instruments with special brushes and then running
the instruments through the Autoclave. Moreover, Dr. Krause
indicated that he had seen reports in medical literature that
infections were being caused by these liposuction canulas, and
the infections were of the mycobacterium variety. (T. 283).
Dr. Kirby, an expert in microbiology and pathology, who did a
two-year research fellowship at Tufts Medical School studying
bacteria and bacterial pathogens, further corroborated the
earlier testimony. (T. 310). Dr. Kirby testified that he
personally operates an Autoclave in his research laboratory to
sterilize his equipment. (T. 311). He reiterated the
sterilization process outlined by Dr. Krause and then opined that
to a reasonable degree of medical certainty that the disease was
caused either by a failure in the sterilization practices or in
the Autoclave itself. (T. 311-314). Dr. Kirby confirmed the
plaintiffs' theory by summarizing the early development of Mrs.
Hayes's illness, based on his review of the depositions and
medical records. (T. 315:18-25). Dr. Kirby further confirmed the
plaintiffs' witnesses's testimony that there was no evidence that
Mrs. Hayes had received injections from her doctors between the
time of her face-lift surgery by Dr. Cha and the time she treated
with Dr. Abraham in September 1997. (T. 316).
Dr. Kirby described the pathology of mycobacterium fortuitum:
Yeah. Well, they call this organism rapidly growing
mycobacterium, but actually there is it's not that
rapid in the grand scheme of things, it neither grows
rapidly nor does it cause a very rapid infection.
When we often think of infection, we think of
something like a typical surgical infection, you
become symptomatic within days of your surgery and it
becomes very acute, it brings you to the doctor right
away and you get treated. Rapidly growing
microbacterium are . . . It's rapid comparing to
slow-growing microbacterium. . . . Those would be
things like the bacteria that causes tuberculosis,
that's call microbacterium tuberculosis. There are a
number of other slow-growing microbacterium, too. I
guess there is mycobacterium lepri, which can[`t]
even be grown in the laboratory, so that's a very
slow-growing microbacterium. . . . [U]nlike a typical
bacterial infection, rapidly-growing microbacterium
can take quite some time before symptoms first
appeared. And so I think they in reviewing the
literature, they say the median time is about one
month after surgery, for example, when the organism
was introduced, but it can actually be or after
some sort of trauma was introduced, the organism, but
it can actually be quite long. . . . I've seen
reports of two years, three years. There is actually
even a report of someone who I think stepped on a
toothpick and it lodged in his foot and I think about
15 years later developed mycobacterium fortuitum
infection. And so it can be it's a very unusual
type of infection and it can be quite a long time
between the initiating event and when the symptoms
occur. And as you might imagine, it could be very
confusing for doctors to try to sort out. You know,
they're not necessarily thinking about this organism
in relationship to some of that that a patient might
(T. 317:11-319:6). As far as the clinical course of these
mycobacterial infections, Dr. Kirby testified that "they tend to
be chronic. Patients will, once their symptoms first start to
appear, well, there is a very lucky small minority who just get
better, but unfortunately, most of the people develop very
chronic sores, they'll develop ulcers, abscesses, these lesions
which kind of come and go, but basically they'll infection will
essentially persist indefinitely unless some sort of therapy is
given. So, it's a chronic progressive infection." (T. 319:9-17).
As for treatment, Dr. Kirby testified that "[t]he treatment would
be antibiotics. And one of the significant things about treating
these organisms is that they require prolonged treatment, courses
of six months of therapy. And that's what Mrs. Hayes had, I think
she's had an initial six month course of therapy. And sometimes
even with what we think is adequate therapy, these infections
aren't completely cured and patients may have to be treated
again. And it might therapy alone might not be sufficient and
especially with infections that are sort of widespread that
involve tissue deeply, you often need to do surgery too in order
to help get rid of the infection. It's a very difficult infection
to deal with." (T. 319:19-320:5). Dr. Kirby also testified about
the origin of the infection in Mrs. Hayes:
Q. Is there any significance to the fact that these
sores, ulcers are only located on her face?
A. There is significance to that. In terms of in
reviewing the case matter and trying to figure out
how this infection came to be, I made note of the
fact that she's (sic) actually has lesions which have
developed on many areas of her face, so it's not just
a lesion on her right cheek or a lesion on her left
cheek, she has had lesions on both cheeks, under her
jawline, on multiple areas of her face. And to me,
that suggests that there has to be some sort of
unifying event where this organism was introduced all
at once into multiple locations. And my conclusion,
to a reasonable degree of medical certainty, is that
unifying event, based upon the time of the
development of these lesions, was her original
Dr. Kirby further discussed the pathology of Mrs. Hayes's
disease, as revealed by her medical records at different points.
He noted that her biopsy in 1998 revealed chronic inflammation
and that this would be typical in a mycobacterial infection, but
that the acid-fast stain that would have revealed the
mycobacterial infection itself was not done at this time. (T.
322-323). He further noted that the biopsy in 1999 of certain of
her neck lymph nodes revealed hyperplasia, which is consistent
with an infection and consistent with a mycobacterial infection.
(T. 323-324). The biopsy further revealed granulomas composed of
histiosities, some of which were multi-nucleated, again
consistent with mycobacterial infection. (T. 325). But though
these bodily defenses could bespeak a mycobacterial infection,
which both sides' experts assert is a very rare occurrence, the
doctors initially were focused on the more common possibility,
the foreign-body infection. (See e.g. T. 326-327). Moreover,
it is very difficult to find mycobacterium, even if you are
looking for it: it only shows up in 30 percent of the properly
performed cultures, the cultures must be specifically for
mycobacterium as they are held much longer than regular bacterial
cultures, and if the patient is on antibiotic medication then the
chances of discovery are greatly decreased. (See e.g. T.
During direct testimony, Dr. Kirby also refuted the defendant's
experts' opinions based on their reports. For example, Dr. Kirby
disagreed with Dr. Sanchez's conclusion that the pathology was
not consistent with mycobacterial infection. (T. 332-334). Dr.
Sanchez opined in his report, and later testified at trial, that
the descriptions of the pathology findings, which include foreign
body, giant cells, fibrosis and chronic inflammation, are not
features of mycobacterium. Dr. Kirby specifically disagreed with
this conclusion noting that in his experience, the "foreign body
giant cells are found almost always with these types of
infections." (T. 334:15-20). Dr. Kirby further opined that a
granuloma-type response would be primary evidence of a
mycobacterial infection and the more advanced polymorphonuclear
leukocytes would not have to be present for a mycobacterium
fortuitum infection to exist. (T. 333).
Finally, the plaintiffs presented Dr. Huitt, Director of the
Adult Infectious Disease Care Unit at the National Jewish Medical
and Research Center, board-certified in internal medicine and
infectious disease. (T. 368). The facility in which she practices
is a national and international referral center for the treatment
of mycobacterial infections, along with several other disease
processes. Her particular specialty is in mycobacteria and
infectious diseases, the area in which she practices and teaches,
and the center sees roughly between five hundred and a thousand
patients per year with mycobacterial infections. Ninety-seven
percent of the patients she personally sees clinically have
mycobacterial infections. (T. 369). Dr. Rausch contacted the
National Jewish Medical and Research Center on its consult line
initially, and Dr. Huitt advised Dr. Rausch on the course of
treatment for Mrs. Hayes. (T. 371).
Dr. Huitt testified that Mrs. Hayes's medical history is
"extremely characteristic" of mycobacterial infection. (T. 372).
For example, the characteristic time course for the pain and
redness to develop into a sore and then break open is a few weeks
to a few months. That is precisely the course described by Mrs.
Hayes. (T. 372). Dr. Huitt further testified that a variety of
commonly used antibiotics essentially put the bacteria to sleep,
euphemistically speaking. (T. 374-375). Steroid injections can
cause two polar reactions: either the infection will quiet down
and the pain will subside for a time or the infection will flare
up and the ...