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The Honorable E. Richard Webber, United States District Judge for the

Eastern District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-1273

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Elijah W. Swope, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Missouri.

Asim Razzaq, M.D., *

* [PUBLISHED]

Appellee. *

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Submitted: October 10, 2005

Filed: November 17, 2005

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Before RILEY, HANSEN, and COLLOTON, Circuit Judges. 

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PER CURIAM.

Elijah W. Swope (Swope) moved for a new trial following his unsuccessful

diversity medical malpractice action against his urologist, Dr. Asim Razzaq (Dr.

Razzaq), arguing the district court1

 (1) clearly erred in denying his challenge under

Batson v. Kentucky, 476 U.S. 79 (1986), and (2) abused its discretion in controlling

closing arguments. The district court denied the motion. Swope appeals. We affirm

the district court’s denial of Swope’s new trial motion. 
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I. BACKGROUND

Swope, an African-American, brought a medical malpractice action against

three doctors for damages he suffered during a radiation seed implantation to treat his

prostate cancer. Swope dismissed one doctor, settled with the second, and went to

trial against the third, Dr. Razzaq, a urologist. At the conclusion of voir dire, Dr.

Razzaq’s attorney peremptorily struck the only three African-Americans from the

remaining thirteen person venire panel. Swope made a Batson challenge to the

peremptory strikes. After hearing arguments, the district court denied Swope’s

Batson challenge and seated an all-white jury. At trial, to establish Dr. Razzaq’s

negligence, Swope called Dr. Louis Potters (Dr. Potters), a radiation oncologist.

During closing argument, Dr. Razzaq argued that because he was a urologist, and

because Swope’s expert Dr. Potters was a radiologist, Dr. Potters could not render

competent testimony on Dr. Razzaq’s negligence. Swope did not object to this

argument. In Swope’s rebuttal, however, Dr. Razzaq objected to Swope’s argument

that the legal standard was “defendant’s profession,” not Dr. Razzaq’s specialty. The

district court sustained the objection, limiting Swope’s argument. The jury returned

a verdict in favor of Dr. Razzaq.

Swope appeals, arguing (1) the district court erred in overruling his Batson

challenge by failing to engage in a proper analysis under the third step of the Batson

burden-shifting test, and (2) the district court abused its discretion by allowing Dr.

Razzaq to argue during closing that Swope failed to support his case by calling an

expert radiation oncologist to establish the standard of care for the defendant

urologist and by not allowing Swope to argue a physician in one specialty is

competent to testify as to the standard of care of a physician in another specialty.
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II. DISCUSSION

A. Batson Challenge

We review a district court’s Batson ruling for clear error and with great

deference. United States v. Blaylock, 421 F.3d 758, 769 (8th Cir. 2005) (citations

omitted). A Batson challenge is evaluated under a three-step burden-shifting

analysis:

Under Batson, a party opposing a peremptory strike may make a prima

facie case of discrimination by showing the circumstances support an

inference that the exercise of the challenged peremptory strike was

based on unlawful discrimination. If the objecting party establishes a

prima facie case, then the proponent of the peremptory strike must

provide a nondiscriminatory explanation for the strike. The district

court then must determine whether there was purposeful discrimination.

Id. (citations omitted). Under the third step, “[a] party can establish an otherwise

neutral explanation is pretextual by showing that the characteristics of a stricken

black panel member are shared by white panel members who were not stricken.”

Davidson v. Harris, 30 F.3d 963, 965 (8th Cir. 1994) (citations omitted). “Pretext can

also be based on a finding that the factors used to explain the strike are irrelevant to

a person’s ability to perform as a juror in the particular case.” United States v.

Jenkins, 52 F.3d 743, 747 (8th Cir. 1995) (citing Elem v. Purkett, 25 F.3d 679, 683

(8th Cir. 1994)).

After the district court correctly found Swope made a prima facie showing Dr.

Razzaq’s peremptory strikes were unlawfully based on race, the court requested raceneutral explanations for the strikes from Dr. Razzaq. Regarding the first juror struck,

Dr. Razzaq’s attorney claimed he struck the juror because the juror was a long-time

casino employee, and a person working in that industry might have a “lotto mentality”

and view a personal injury lawsuit as an opportunity to strike it rich. Regarding the

second juror struck, Dr. Razzaq’s attorney claimed he struck the juror because the
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Swope argues on appeal there were similarly situated white jurors left on the

jury. The issue on appeal, however, is whether the district court clearly erred in

finding Swope failed to meet his burden of demonstrating purposeful discrimination.

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juror was unemployed, he had been a plaintiff in a personal injury case, and his wife

was a government employee, all of which could make the juror favor plaintiffs. Dr.

Razzaq’s lawyer also claimed he failed to communicate well with the juror during

voir dire. Regarding the third juror struck, Dr. Razzaq’s attorney claimed he struck

the juror because she was a long-time government employee and demographically

those persons tend to favor plaintiffs.

Swope attempted to rebut these race-neutral explanations, claiming they were

irrelevant to the ability to be a juror in a medical negligence case and being

unemployed, a former personal injury plaintiff, or a government employee does not

make a juror more plaintiff-oriented. Swope failed, however, to make the district

court aware of any similarly situated jurors who had not been struck.2

 The district

court ruled Swope failed to prove any of the three jurors were struck based on

purposeful discrimination.

Having thoroughly reviewed the record, we hold the district court did not

clearly err in determining Swope failed to meet his burden of demonstrating

purposeful discrimination. While Dr. Razzaq’s attorney peremptorily struck the only

three African-Americans from the remaining thirteen person venire panel, leaving an

all-white jury, that fact raises only the “debatability” of the striking party’s motives,

and the district court took this into account when making its ruling. See Miller-El v.

Cockrell, 537 U.S. 322, 342 (2003). Also, Swope is incorrect that the race-neutral

reasons for a party’s peremptory strike must be related to the particular case to be

tried. While relation to the case is relevant, we have never required such a showing.

Cf. United States v. Ali, 63 F.3d 710, 713 (8th Cir. 1995) (“In the present case, not
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only was the government’s reason race-neutral, it was also related to the particular

case to be tried.”). The district court observed the communications between the

attorneys and jurors, and evaluated the credibility of Dr. Razzaq’s lawyer’s raceneutral explanations. We defer to the court’s reasoned findings, and accordingly, we

find no clear error.

B. Standard of Care for Medical Specialist

Swope also argues the district court abused its discretion by allowing Dr.

Razzaq to argue during closing that Swope failed to support his case by calling an

expert radiation oncologist to establish the standard of care for the defendant

urologist and by not allowing Swope to argue a physician, regardless of specialty, is

competent to testify as to the standard of care of another physician. See United States

v. Macklin, 104 F.3d 1046, 1049 (8th Cir. 1997) (citation omitted) (“Trial courts are

invested with broad discretion in controlling closing arguments, and we will reverse

only if the trial court abused that discretion.”). 

Based on our review of the record and Missouri case law, we hold the district

court did not abuse its discretion. Missouri cases hold the requisite standard of care

imposed on a medical defendant in a medical malpractice case is “that degree of care,

skill, and proficiency which is commonly exercised by the ordinarily skillful, careful,

and prudent physician, engaged in a similar practice under the same or similar

conditions.” Yoos v. Jewish Hosp. of St. Louis, 645 S.W.2d 177, 183 (Mo. Ct. App.

1982) (emphasis added) (quoting Rauschelbach v. Benincasa, 372 S.W.2d 120, 124

(Mo. 1963)); see also Hart v. Steele, 416 S.W.2d 927, 931-32 (Mo. 1967); Steele v.

Woods, 327 S.W.2d 187, 196 n.11 (Mo. 1959) (collecting authorities). It therefore

was not an abuse of discretion for the district court (1) to allow Dr. Razzaq to argue

to the jury an expert urologist, not an expert radiation oncologist, should determine

the standard of care for a urologist, and (2) to prohibit Swope from arguing Dr.

Razzaq’s specialty was irrelevant and the real test was for the defendant’s profession

in general. Accordingly, we affirm.
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The parties’ pending motions are moot and are denied.

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III. CONCLUSION

Based on our review of the record, we affirm the district court’s denial of

Swope’s motion for new trial.3

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