USCA1 Opinion

October 8, 1992
____________________
No. 92-1274
SANDRA G. WILDER,
Plaintiff, Appellee,
v.
WARREN F. EBERHART, M.D., AND
CONCORD CLINIC, INC.,
Defendants, Appellants.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Martin F. Loughlin, Senior U.S. District Judge]
__________________________
____________________
Before
Torruella and Stahl, Circuit Judges,
______________
and Hornby,* District Judge.
______________
_____________________

Robert M. Larsen, with whom William D. Pandolph and Sulloway

________________
___________________
________

Hollis & Soden, were on brief for appellants.

______________
John Pierce Kalled, with whom Douglas P. Hendrickx
____________________
_____________________
Kalled Law Offices, were on brief for appellee.
__________________

and

____________________
____________________

____________________
*

Of the District of Maine, sitting by designation.

TORRUELLA, Circuit Judge.

______________
("Dr.

Eberhart") appeals

medical malpractice
former

an adverse

Doctor Warren

judgment rendered

action, stemming from

patient Sandra

Wilder ("Ms.

F. Eberhart,

a suit

Wilder").

in this

filed by
On

his

appeal, Dr.

Eberhart raises the issue of whether the district court committed

reversible error

in excluding

testimony to that which could be

of "probability."

Because

district court erred in

and/or

limiting rebuttal

expert

expressed quantifiably in terms

we agree with Dr. Eberhart,

that the

limiting his defense expert's testimony,

we vacate the judgment and remand for a new trial.

BACKGROUND
BACKGROUND
__________
On May

21, 1985, Ms.

Wilder, a Vermont

resident, saw

Dr. Eberhart in his Concord New Hampshire office for consultation

regarding Ms. Wilder's obesity
to

control

her weight

and the medical options available

problem.

Dr. Eberhart determined that

Following the

Ms. Wilder

vertical banded gastroplasty ("VBG")

stomach.

Ms.

Wilder was

June 11, 1985, under

candidate for

or vertical stapling of the

admitted to

the care

was a

consultation,

the Concord

of Dr. Eberhart.

Hospital on

The

following

day, June 12, 1985, Dr. Eberhart performed the VBG on Ms. Wilder.
The

procedure went

uneventfully

until near

the

end when

Dr.

Eberhart noticed a 3 to 3.5 centimeter tear in Ms. Wilder's lower

esophagus.

The

tear was repaired by suturing

suturing a fold of
additional

the gastric tissue around

support

fundoplication.

--

procedure

the tear and then

the tear site

known

as

for

Nissen

Following the operation, Ms. Wilder was sent to

-2-

the recovery room.

On

the

following day,

June

13,

1985, Dr.

Eberhart

determined
He

that there was still leakage

operated

again that

Ms. Wilder's lower

same day

esophagus.

June 20, 1985, Dr. Eberhart

ray

The

discovered two

tears

tears in

were repaired.

On

decided to operate again when

an X-

revealed that the lower esophagus and upper stomach were not

healing properly.
the

and

at the lower esophagus.

During the operation, it was

lower esophagus

and upper

Thus Dr. Eberhart removed

stomach were

that dead tissue

discovered that

no longer

viable.

and sewed the

side of the

stomach closed.

reconnected

to

transferred

to the Dartmouth-Hitchcock Medical Center, where she

the

The remainder

upper

esophagus.

of the stomach

Eventually,

remained hospitalized for 101 days until her

Ms.

Wilder

was

was

release in November

of 1985.
Ms.

Wilder filed

States District Court

this

diversity suit

for the District of New

in the

United

Hampshire against

Dr. Eberhart and the Concord Clinic alleging amongst other things
negligence on behalf of Dr. Eberhart in mobilizing the
during surgery, causing her recurring

esophagus

esophageal injury.

A jury

awarded Ms. Wilder $685,000 in damages.

The Trial
The Trial
_________
I. Expert Testimony
I. Expert Testimony
___________________
Dr. Saul Frank
surgeon from

Weinstein ("Dr. Weinstein"), a

Philadelphia,

plaintiff's expert.

Dr.

testified via

video

general

deposition

Weinstein categorically ruled

as

out any

-3-

possibility that instrumentation could

Ms.

Wilder's

esophagus.

reservation

that the

mobilization

of the

sole

have caused the injury to

Further,
cause of

esophagus by

he

concluded

the esophageal

Dr. Eberhart

without

injury was

during

the VBG

procedure.
On

the fourth day of trial, three days after the video

deposition of
prepared

to

Dr. Weinstein
introduce

was presented, the

their

expert witnesses,

Sugarbaker ("Dr. Sugarbaker"), Assistant

Harvard Medical
and Women's
developer

of the VBG technique.

that other
Just

Dr. Edward

moments

before

filed a Second Motion

opinion

testimony

expressed in

by

Mason"), the

prepared to testify

testimony,

in Limine seeking

defendants'

J.

esophageal injury1 existed.

Dr. Sugarbaker's

counsel

David

Surgery at Brigham

Mason ("Dr.

Both were

"possible" causes of the

Dr.

Professor of Surgery at

School and Chief of Thoracic

Hospital, and

defendants were

experts that

terms of "probability" as

Ms. Wilder's

to exclude any
could

not

be

distinguished from "mere

possibility."

Ms. Wilder's counsel argued that by presenting evidence

of

particular

possible

causes

of the

injury,

defendant

was

____________________

1 Defendants' experts were to testify as to each possible cause

of Ms. Wilder's esophageal tear.
Moreover, the experts were
going to
rank the possibilities in
order of likelihood,
reflecting the most likely causes.
Out of this ranking, the
defendants' experts would conclude that the most likely cause of
Ms. Wilder's injury was the passage and manipulation by the
anesthesiologist of certain instruments -- the Nasogastric tube
or the Maloney dilator -- through or in the esophagus, and
correspondingly, that the least likely of the possible causes was
mobilization of the esophagus by Dr. Eberhart.
-4-

raising an affirmative

defense which shifted

Eberhart to prove that another

the

esophagus during

the burden to

Dr.

cause, other than manipulation of

surgery,

was more

cause of the tears to the esophagus.

probably than

not the

Defense counsel argued that

it was entitled to put on testimonial evidence to the effect that

no one,

including Ms. Wilder's expert, Dr.

Weinstein, should be

able to say more probably than not the cause of the tears
esophagus

was manipulation

Defense counsel

or

also argued that

mobilization

of the

the burden of

to the

esophagus.

proof regarding

causation did not shift to the defense, and further, that defense
experts were entitled to

testify as to other possible

causes of

the esophagus tears in rebuttal of the claims made by plaintiff's

witnesses.
STANDARD OF REVIEW
STANDARD OF REVIEW
__________________
Generally, the decision whether
testimony
judge.
851

is a matter within

or not to admit expert

the sound discretion

of the trial

Int'l Adhesive Coating Co., Inc. v. Bolton Emerson Int'l,

________________________________
____________________

F.2d

540, 544

(1st Cir.

1988)

(citing Lynch
_____

v. Merrell________

National Laboratories, 830 F.2d 1190, 1196-97 (1st Cir. 1987)); 3

_____________________
J. Weinstein &
04

(1987)).

M. Berger, Weinstein's Evidence

____________________
The trial

judge's decisions will

absent a clear abuse of that discretion

(citing

not be disturbed

or an error of law.

Id.
__

DaSilva v. American Brands, Inc., 845 F.2d 356, 361 (1st

_______
_____________________

Cir. 1988)).
in prohibiting
possible

703[1], at 703-

We

find that the trial judge committed clear error

defendant's experts

causes in

rebuttal of

from testifying as

Dr. Weinstein's

-5-

thus we vacate and remand the case for a new trial.

to other

testimony, and

DISCUSSION
DISCUSSION
__________
Plaintiff's Second Motion

in Limine

cited Emerson
_______

v.

Twin State Gas and Electric Co.,

_______________________________

174 A. 779 (N.H. 1934), for the

proposition

testimony

that

"the

opinion

admissible if stated within

granting

plaintiff's

testimony
with the

Second

of Drs. Sugarbaker

physician

is

reasonable medical probability."

In

Motion

in

of

Limine

and Mason, the

defendants that the burden of

to

limit

the

trial judge agreed

proof did not shift, yet

he cited Bentley v. Adams, 128 A.2d 202 (N.H. 1956)

_______
_____

and Brann v.
_____

Exeter Clinic, Inc., 498 A.2d 334 (N.H. 1985), concluding that to
___________________
admit

testimony of

error."
somewhat

possibilities

(Tr. Vol. 4 p. 52).

to

the defendant,

probably than

would result

in

"reversible

This effectively shifted the burden

because he

now

had to

prove more

not, that another cause, not manipulation, was the

cause of Ms. Wilder's injury.

Besides finding that

these cases

stand for other principles inapplicable to the facts presented by

this

case,2 our

review of applicable

one conclusion; that the

case law leads

us to but

trial court committed a clear

error of

law in excluding defendants' expert rebuttal testimony.

It is
burden

of

well settled under

proof

with

respect

New Hampshire
to

causation

law that
in

the

medical

____________________

2
These cases generally refer to the plaintiff's burden of
proof; that the plaintiff must prove his case within a reasonable
degree of medical certainty. They are silent as to whether or

not a defendant in a medical malpractice action or any negligence

action
may present
"possibility" evidence
when rebutting
plaintiff's "probability or certainty" evidence.
-6-

malpractice

case

rests

and

remains

with

the

plaintiff.

Pillsbury-Flood v. Portsmouth Hospital, 512 A.2d 1126, 1129 (N.H.

_______________
___________________
1986).

Moreover, proximate

injury complained
established by

of

in

causation between negligence and the

a medical

expert testimony.

Hospital, 536 A.2d 174, 176 (N.H.

________
defendant need not disprove
credible

evidence

which

plaintiff's evidence.
1082,

1084

Martin v.
______
1987).

causation.
tends

to

case

must

Wentworth-Douglass
__________________

On the other hand, the

Rather, he

discredit

must produce
or

rebut

As

the

New Hampshire

than not

defendant's

Tzimas, the plaintiff in

______

that [plaintiff's]

negligence.

the

Supreme Court

a negligence action

bears the burden of producing evidence "to prove that it is

likely

be

Tzimas v. Coiffures By Michael, 606 A.2d

______
_____________________

(N.H. 1992).

recently stated in

malpractice

Tzimas,
______

injury was"

606 A.2d

caused

at 1084.

more

by the

Defendant

need not prove another

of fact

cause, he only has to

that the alleged negligence

the injury.

Id.
___

convince the trier

was not the legal

cause of

In proving such a case, a defendant may produce

other "possible" causes

possible

causes

probably

than not.

of the plaintiff's injury.

need

not

be

proved

To fashion such

with

These other

certainty

a rule would

or more

unduly tie a

defendant's hands in rebutting a plaintiff's case, where as here,

plaintiff's

expert

caused plaintiff's

testifies that
injury.

The

no
burden

other

cause could

would then

shift

defendant would then bear

the burden of positively proving

another

not

specific

cause,

plaintiff's expert, caused

the

negligence

the injury.

have

and

that

established

Certainly, this

by

is much

-7-

more than what

should be required of a

defendant in rebutting a

plaintiff's evidence.
Were

we to

accept

plaintiff's argument

that once

plaintiff puts on a prima facie case, a defendant cannot rebut it

without

proving another

abound.

For example if

experts

cause,

the resulting

ninety-nine out of

inequities would

one hundred medical

agreed that there were four equally possible causes of a

certain injury,
expert
his

A, B, C

testimony of

would

any of the

Even

if all

testify that any of

equally

to

reflect

that B,

C,

the one

certain cause of

from presenting

or D

unless they

was the

experts were

the

cause of

prepared to

the possible causes A, B, C or D, could have

state that

injury,

so long

one particular

professed by plaintiff more

all as

be precluded

of defendant's

caused plaintiff's

prepared

A was the

other ninety-nine experts,

testify conclusively

injury.

injury,

and plaintiff produces

who conclusively states that

injury, defendant

would

and D,

as

none would

cause, other

be

than that

probably than not caused plaintiff's

then defendant's experts would not be able to testify at

to causation.
the state of the

We think

that such

law in New

result does

not

Hampshire, and furthermore

would be manifestly unjust and unduly burdensome on defendants.

Under the circumstances of
prejudiced

by the granting of

this case, Dr. Eberhart was

the Second Motion

this prejudice constituted reversible

error.

in Limine, and

Thus, the judgment

in favor of plaintiff is vacated and remanded for a new trial.

Vacated and remanded.
Vacated and remanded.
____________________
-8-