United States Court of Appeals

For the Eighth Circuit

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No. 17-2228

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Leslie Grussing

lllllllllllllllllllllPlaintiff - Appellant

v.

Orthopedic and Sports Medicine, Inc., A Missouri Corporation; Corey Solman, Jr.,

M.D.

lllllllllllllllllllllDefendants - Appellees

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Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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Submitted: March 13, 2018

Filed: June 12, 2018

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Before WOLLMAN, SHEPHERD, and ERICKSON, Circuit Judges.

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WOLLMAN, Circuit Judge.

Leslie Grussing appeals the district court’s denial of her motion for a new trial 1

under Federal Rule of Civil Procedure 59(a)(1)(A), contending that the district court

The Honorable Charles A. Shaw, United States District Judge for the Eastern 1

District of Missouri.
erroneously limited her cross-examination of the defendants’ expert witness and that

it failed to correct defense counsel’s misstatement of law during closing argument. 

We affirm.

I. Background

Dr. Corey Solman, Jr., performed arthroscopic surgery on Grussing’s knee on

June 26, 2014. At her post-surgery follow-up appointment on July 9, 2014, Grussing

reported swelling in her knee to Dr. Solman’s physician assistant, Jason Gay. Gay

recommended thatshe attend physical therapy to treat her symptoms. Dr. Solman did

not examine Grussing during this visit.

Grussing returned to Dr. Solman’s office on July 18, 2014, and again reported

pain and swelling. Dr. Solman aspirated Grussing’s knee, draining off 60cc of

synovial fluid. Dr. Solman noticed that the fluid looked normal aside from a small

amount of blood and therefore decided not to test the fluid for infection. 

Grussing continued to experience pain and swelling during the following

months. She was seen by a different physician in October 2014, who aspirated

Grussing’s knee and sent the synovial fluid in for analysis. The test results showed

that the knee was chronically infected, as a result of which Grussing underwent a

permanent total knee replacement in February 2015. 

Grussing thereafter filed suit in federal district court, which had jurisdiction

over these diverse parties. Grussing alleged that Dr. Solman and Orthopedic and

Sports Medicine, Inc. (collectively defendants) committed medical malpractice by

failing to diagnose and treat a post-surgery infection in her knee. The primary issue

at trial was whether Dr. Solman breached the standard of care when he decided not

to test the synovial fluid aspirated from Grussing’s knee during her July 18, 2014,

appointment.

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Grussing opened her case by presenting Dr. Solman’s deposition testimony,

during which he acknowledged that fluid that does not appear to be cloudy can test

positive for bacterial infection.

Grussing’s expert witness testified that because Grussing had sudden

complaints of onset pain and swelling post-surgery, the synovial fluid should have

been sent in for testing, and that Dr. Solman’s failure to do so breached the standard

of care appropriate to the circumstances. 

The defense’s expert witness, Dr. Matthew Matava, disagreed and instead

testified that there was no way to confirm that Grussing’s knee wasinfected when she

was examined by Dr. Solman on July 18, 2014, because Grussing did not exhibit

constitutional signs of an infection—fever, redness, sweats, chills, and abnormal

looking synovial fluid. The following exchange occurred during Dr. Matava’s crossexamination:

Grussing’s Counsel: Okay. Did [Dr. Solman] actually rule out

infection by any means other than looking at

the fluid?

Dr. Matava: He looked at the fluid, he took the context of

the patient’s history or lack thereof in ruling

out an infection.

Grussing’s Counsel: And again, that’s relying on his history, not

anybody else’s?

Defense Counsel: Your Honor, objection. Repetitious.

The Court: [Counsel], you keep going back to what and

when on this fluid. You need to quit it and

move on. You know, I mean . . . Please.

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Grussing’s Counsel: Can perfectly normal looking synovial fluid

be infected?

Defense Counsel: Your Honor, this is repetitious as well. 

The Court: Sustained.

Grussing’s Counsel: I have not asked that question before, Your

Honor. 

The Court: Well, you’re not going to ask it now. Move

on from this. No, move on.

Grussing’s Counsel: Your Honor, that’s the core of the case.

The Court: Listen, you have gone over this enough. 

Grussing’s counsel ultimately moved on to a different topic. 

In his testimony during the defendants’ case-in-chief, Dr. Solman admitted that

infection cannot be ruled out based solely on the appearance of synovial fluid. 

Physician assistant Gay also testified that it was “possible, but not probable” for

normal looking synovial fluid to be infected. 

At the close of evidence, and before closing arguments to the jury, the court

read its instructions to the jury, including the following:

In these instructions, you are told that your verdict depends on

whether or not you believe certain propositions of factsubmitted to you. 

The burden is upon the party who relies upon any such proposition to

cause you to believe that such proposition is more likely to be true than

not true. In determining whether or not you believe any proposition, you

must consider only the evidence and the reasonable inferences derived

from the evidence. If the evidence in the case does not cause you to

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believe a particular proposition submitted, then you cannot return a

verdict requiring belief of that proposition. 

You have probably heard the phrase “proof beyond a reasonable

doubt.” That is a stricter standard than “more likely true than not true.” 

It applies in criminal cases, but not in this civil case;so put it out of your

mind. 

During closing arguments, Grussing’s counsel objected to defense counsel’s

statement regarding the burden of proof: 

Defense Counsel: I want to discuss briefly just a few

instructions. One of those is the burden of

proof. The plaintiff has the burden of proof in

this case. As indicated a moment ago, I

believe the evidence supports a verdict for Dr.

Solman. And we don’t have an obligation

under the law to prove anything. I don’t

believe plaintiff has met their burden. I think

– but if you are just sitting there and you are

not sure, then the law requires that you find in

favor of the defendants.

A few other instructions. One of them.

Grussing’s Counsel: Objection, Your Honor, thisis a misstatement

of the law, “not sure.”

The Court: Counsel.

Defense Counsel: Your Honor –

The Court: Follow the instructions. 

Defense Counsel: Yes. And the Court will give you the burden

of proof, what that is. More likely than not. 

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The Court: Well, it’s in the instruction. 

Defense Counsel: Yes, Your Honor.

The Court: Yes. 

The court provided the jury with written copies of the instructions prior to

deliberation, following which the jury returned a verdict in favor of the defendants,

and the district court denied Grussing’s motion for a new trial.

II. Discussion

“We review a district court’s denial of a motion for a new trial for abuse of

discretion.” PFS Distribution Co. v. Raduechel, 574 F.3d 580, 589 (8th Cir. 2009).

Grussing contendsthat the district court committed reversible error in limiting

the cross-examination of Dr. Matava regarding whether normallooking synovialfluid

can nonetheless be infected. She argues that her counsel had not previously asked the

question that the court deemed repetitious and that had counsel been allowed to

complete his cross-examination, Dr. Matava would have testified that normal looking

synovial fluid can be infected. 

“[E]rror which might arise from the exclusion of evidence is harmless where

the same facts are presented to the jury through other evidence.” Porchia v. Design

Equip. Co., 113 F.3d 877, 881 (8th Cir. 1997). Dr. Solman and physician assistant

Gay both testified that it was “possible” but “not probable” for normal looking

synovial fluid to test positive for infection. The jury had earlier heard Dr. Solman’s

deposition testimony that fluid that does not appear to be cloudy can test positive for

bacterial infection, which wasthe precise evidence that Grussing was hoping to elicit

from Dr. Matava. Any error in limiting counsel’s questioning on the ground that it

was repetitious was thus harmless.

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We similarly reject Grussing’s assertion that she should be granted a new trial

because of the objected-to statement of law during closing arguments. A threshold

issue is whether federal or Missouri law controls the propriety of closing arguments

in this diversity case. Grussing argues that Missouri law applies. Our court has

stated, however, that whether the district court erred in permitting arguments of

counsel is a procedural question that should be governed by federal law. See

Kostelec v. State Farm Fire and Cas. Co., 64 F.3d 1220, 1228 (8th Cir. 1995) (listing

cases); see also Bank of Am., N.A. v. JB Hanna, LLC, 766 F.3d 841, 851 (8th Cir.

2014) (“The granting or denial of a new trial is a matter of procedure governed by

federal law.”) (internal marks and citation omitted). Federal law grants considerable

discretion to the trial court to control arguments. Vanskike v. Union Pac. R. Co., 725

F.2d 1146, 1149 (8th Cir. 1984). We will reverse only if the statements made were

“plainly unwarranted and clearly injurious.” Id. 

The district court did not abuse its discretion here. It correctly instructed the

jury regarding the burden of proof before and after closing arguments; it immediately

gave a curative instruction during arguments; and the correct burden of proof was

properly emphasized throughout trial. We thus conclude that defense counsel’s

statement was not so plainly unwarranted orso injurious asto require a new trial. See

City of Malden v. Union Elec. Co., 887 F.2d 157, 164-65 (8th Cir. 1989) (holding

that a new trial is not warranted when the district court properly instructed the jury

concerning its duty and thereby cured an improper instruction that had been

previously given by defense during closing arguments); see also United States v.

Voice, 622 F.3d 870, 875 (8th Cir. 2010) (holding that the district court sufficiently

corrected a misstatement of governing law in closing arguments when it instructed

the jury to “rely on the jury instructions that I gave you for what the law means”). 

The judgment is affirmed. 

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