The Honorable John B. Jones, United States District Judge for the District of 1 South Dakota, sitting by designation.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

No. 98-1187
Ian J. Clark, a minor, by and through * his mother and father as parents and * next friends; Bridget McGinn Clark; * Caven Clark; * * Appeal from the United States Appellants; * District Court for the * District of Nebraska. v. * * Gregory W. Heidrick, M.D.; Lincoln * Ob/Gyn, P.C.; * * Appellees. *

Submitted: June 10, 1998 Filed: July 30, 1998
Before LOKEN and HEANEY, Circuit Judges, and JONES, District Judge. 1
HEANEY, Circuit Judge.In the words of Dr. Lawrence Borow, an expert witness for the Clarks, a 2 shoulder dystocia is a situation in which the baby’s head delivers either sponta neously, . . . or the doctor has intervened, meaning he had to pu t forceps on, . . . but was able to get the baby’s head out. And then th e baby’s head pulls back, retracts aga inst the opening of the vagina and the shou lders don’t promptly follow. In other words, the shoulders ar e caught. (Tr. at 169.) Accord ing to Dr. Borow, “left brachial plexus palsy,” also known as Erb’ s 3 palsy, “means that the baby has significant disability with movement in the arm on the left side.” (Tr. at 197.) 2 Alleging medical malpractice, Ian J. Clark, by and through his parents, brought this diversity action against Dr. Gregory Heidrick and Lincoln Ob/Gyn, P.C. The jury returned a verdict in favor of the defendants, and the magistrate denied the Clarks ’ motion for a new trial. On appeal, the Clarks challenge two evidentiary rulings and the denial of their motion for a new trial. We affirm.
I. Ian was born on January 28, 1994, at S aint Elizabeth Community Health Center in Li ncoln, Nebraska. Heidrick performed Ian’s delivery. At the time of delivery , Heid rick was a shareholder, agent, and employee of Lincoln Ob/Gyn. The Clark s broughta diversity action against Heidrick and Lincoln Ob/Gyn, alleging that th e negligent delivery of Ian injured Ian and his mother. The Clarks alleged that Heidrick failed to manage Mrs. Clark’s labor properly, failed to perf orm a Cesarean section, and failed properly to manage a complication that occurred during the labor known as a “shou lder dystocia.” Specifically, the Clarks contended that Heidrick improperl y

2 ap pliedobstetrics forceps, exerting excessive traction on Ian’s head and causing lef t brachial plexus palsy. On November 7, 1997, the jury returned a verdict in favor of 3A “nuchal arm” is an arm or hand that is improperly located behind the feta l 4 head during delivery. ( See Tr. at 537.) 3 Heidr ick and Lincoln Ob/Gyn. On November 20, 1997, the magistrate denied th e Clarks’ motion for a new trial. On appeal, the Clarks argue that the magistrate erred by (1) allowing speculative expert testimony, (2) denying the introduction of rebuttal testimony, and (3) denying their motion for a new trial.
II. A. Opinion Testimony of Dr. Heidrick
Heidrick testified at tri al that he did not specifically remember the events of the labor and Ian’s delivery. Even after consulting his delivery notes, Heidrick was unable to state with specificity what happened during the delivery. Th e delivery notes indicate that the baby’s shoulder

was “tight” and that there was a “nuchal arm” that delivered 4 “without difficulty.” Despite Heidrick’s lack of knowl edge, he testified that the nuchal arm “contributed to the tight shoulder.” Over the Clarks’ objection, Heidrick als o testified as to the po ssible causes of brachial plexus injuries. While Heidrick testified that a nuchal arm was a possible cause of Ian’s injury, he could not determine with a reasonable degree of medical probability what caused Ian’s injuries.
The Cla rks argue that the magistrate committed clear error by allowin g Heidrick’s testimony as to the possible causes of brachial pl exus injuries in general and Ian’s injuries in particular. Heidrick and Lincoln Ob/Gyn argue that, rather than idle speculation, Heidrick’s testimony reg arding possible causes of brachial plexus injuries properly assisted the jury in a global understanding of brachial plexus injuries. With respect to Heidrick’s testimony regarding Ian’s specific injuries, Heidrick and Lincoln Ob/Gyn argue that it was proper for Heidrick to testify that both a nuchal arm and4

improper extr action couldhave been the cause of Ian’s injuries and that neither could be established with a reasonable degree of medical certainty. We agree.
The decision to admit or exc lude expert testimony is reviewed for a clear abuse of discre tion. See Hose v. Chicago N.W. Transp. Co. , 70 F.3d 968, 972 (8th Cir

. 1995) . “The question of whether expert testimony should be admitted or excluded is a matter governed by federal, rather than state, law.” Fox v. Dannenberg , 906 F.2 d 1253, 1255 (8th Cir. 1990) (citations omitted). Rule 702 of the Federal Rules o f Evidence provides that: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Fed. R. Evid. 702. Rule 702 favors admissibility if the testimony will assist the trier of fact, see Justice v. Carter , 972 F.2d 951, 957 (8th Cir. 1992), and doubts regarding “‘whether an expert’s testimony will be usefu l should generally be resolved in favor of admissibili ty.’” Larabee v. MM&L Int’l Corp. , 896 F.2d 1112, 1116 n.6 (8th Cir

. 1990) (quoting J. Weinstein & M. Berger, Weinstein’s Eviden ce, para. 702[02] at 702- 30 (1988)). Heidrick’s testimony gave t he jury a global understanding of possible causes of brachial plexus injuries. Cf. , United States v. Johnson , 28 F.3d 1487, 1497 (8th Cir. 19 94) (expert testimony in a drug conspiracy trial admissible where “the jury’ s under standing of the conspiracy was aided by a global understanding of dru g distribution networks”). It rebutted the implicit sug gestion that the Clarks’ explanation for the injuries was the only explan ation and, therefore, challenged whether the Clarks had proved their theory of causation. Finally, Heidrick’s testimony reflected a scientifically valid method for det ermining the cause of Ian’s injuries: list the possible5

causes and eli minate as many as possible. See Hose , 70 F.3d at 973 (ruling ou t alternative explanations for injuries is a valid medical method). After carefully rev iewing the record, we are unable to conclude that the district court abus ed its discretion. The cause of Ian’s injuries was a crucial part of the case, and far fromconfusing the jury, Heidrick aided it by admitting that he could hav e caused Ian’s injuries but could not say with a reasonable degree of medical probability what, from a range of possibilities, caused them. B. Dr. Smith’s Deposition Testimony
Dr. Car l Smith, an expert witness retained by Heidrick and Lincoln Ob/Gyn , testified in his June 4, 1997 deposition that flexion or traction on the brachial plexu s was the most likely explanation for Ian’s injuries. The Clarks tried their case on th e theory tha t excessive traction and/or flexion was the cause of Ian’s injuries an d presentedexpert testimony to that effect. Smith was unable to testify at trial, but the Clarks did not offer Smith’s deposition in their case-in-chief.
Dur ing the defendants’ case-in-chief, Heidrick and Lincoln Ob/Gyn playe d Smith ’s October 24, 1997 videotaped deposition in which Smith testified that Ian’ s injury was caused either by an “abnormal in utero fetal position” or by “the mechanics of doing the delivery.” In addition, Smith stated that Heidrick did not depart from the proper standard of care and t hat Heidrick “provided thoughtful attentive care to” Mrs. Clark.
In re buttal, the Clarks proffered Smith’s opinion testimony to reiterate that flexion was the most likely cause of the injury. The magistrate did not allow th e evidence. The Clarks argue that the magistrate abused his discretion by excluding the evidence. Heidrick and Lincoln Ob/Gyn contend that the proffered evidence wa s cumulative, rather than actual rebuttal testimony, and was permissibly excluded.6

“‘No rmally parties are expected to present all of their evidence in their case in chief. Allowance of a party to present additional evidence on rebuttal depends upon the circum stances of the case and rests within the discretion of . . . the trial judge.’ ” Gossett v. We yerhaeuser Co. , 856 F.2d 1154, 1156 (8th Cir. 1988) (quoting Smith v. Conley , 584 F .2d 844, 846 (8th Cir. 1978)). As a result, we “may reverse a tria l court’s d etermination of the admissibility of rebuttal testimony only where there ha s been a clear abuse of discretion.” Id. (citations omitted).
After a careful review of the record we conclude that the magistrate did no t clearly abuse his discretion. Even if we were to conclude that the evid ence should have been admitted, the exclusion constituted harmless error. See Strong v. M ercantile Trust Co. , 816 F.2d 429, 432 (8th Cir. 1987).
C. Motion for a New Trial
After the jury returned a verdict in favor of Heidrick and Lincoln Ob/Gyn, the Clarks moved for a new trial. The magistrate denied the ir motion. The Clarks contend th at the jury’s verdict was not supported by the evidence and that they are entitled to a new trial.
An ord er denying a motion for new trial is not appealable in the absence o f exc eptional circumstances. McGowne v. Challenge-Cook Bros., Inc. , 672 F.2d 652, 659 (8th Cir. 1982). In such cases, we will “reverse for a clear abuseof discretion only where there i s an ‘absolute absence of evidence’ to support the jury’s verdict.” Pulla v. Amoco Oil Co. , 72 F.3d 648, 657 (8th Ci r. 1995) (quoting Gopher Oil Co. v. Union Oil Co. , 955 F.2d 519, 526 (8th Cir. 1992)). At trial, H eidrick and Lincoln Ob/Gyn offered the expert testimony of Dr. Carl Smith an d Dr. James Elston who testified, in short, that the care Heidrick provide d Mrs. Clark was appro priate and that Heidrick met the proper standard of care. While7

the Clarks offered cont

rary expert testimony, the jury evaluated the evidence before it and determine d that Heidrick had not breached the proper standard of care. After a careful re view of the record, we conclude that there was no absolute absence o f evidence to support the jury’s verdict.
III. For the reasons stated above, we affirm. A true copy.
Attest. CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.