FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL JERDEN; CATRINA JERDEN, 

No. 04-35889 Plaintiffs-Appellants,

D.C. No.

v.  CV-02-03056-JPC

PAUL G. AMSTUTZ, M.D., OPINION Defendant-Appellee. 

Appeal from the United States District Court

for the District of Oregon

John P. Cooney, Magistrate Judge, Presiding

Argued and Submitted

September 13, 2005—Portland, Oregon

Filed December 9, 2005

Before: Raymond C. Fisher, Ronald M. Gould, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Gould

16115
COUNSEL

Megan B. Annand, Law Office of Megan B. Annand, Medford, Oregon, for the plaintiffs-appellants. 

Robert L. Cowling (argued) and Benjamin M. Bloom, Cowling, Heysell, Plouse, Ingalls & Moore, Medford, Oregon, for

the defendant-appellee.

16118 JERDEN v. AMSTUTZ
OPINION

GOULD, Circuit Judge: 

In this diversity case, Plaintiffs-Appellants Mr. Daniel and

Ms. Catrina Jerden (“Plaintiffs”) brought a claim of medical

negligence against Defendant-Appellee Dr. Paul G. Amstutz

(“Defendant”) after Defendant, a neurosurgeon, mistakenly

diagnosed Mr. Jerden as having a brain tumor based partly on

Defendant’s interpretation of magnetic resonance imaging

(MRI) reports. Defendant conducted invasive and unwarranted brain surgery on Mr. Jerden before the correct diagnosis of multiple sclerosis was made. 

Plaintiffs appeal from the judgment entered against them

after a jury trial resulted in a verdict for Defendant, contending that the district court committed reversible error warranting a new trial. Plaintiffs assert that there was reversible error

based on: (1) the granting of Defendant’s motion for a limiting instruction to the testimony of Plaintiffs’ expert witness,

Dr. Karl Gross, on the last day of trial; (2) the actual jury

instruction limiting Dr. Gross’s testimony; (3) the testimony

of Defendant’s witness, Mr. Don Bowser, relating to his opinion of the magnetic resonance angiogram (MRA) report; and

(4) the district court’s denial of Plaintiffs’ motion for a new

trial in light of the above claims and newly discovered evidence that Defendant has a prosthetic eye. We agree that there

was error in the granting of a motion limiting the jury’s consideration of Dr. Gross’s testimony, and error with regard to

admission of Mr. Bowser’s opinion concerning the MRA

report. We reverse and remand. 

I

In June 2000, Mr. Jerden was referred to Dr. Amstutz, who

was called upon to evaluate an unknown illness. After examining MRI reports of Mr. Jerden, Dr. Amstutz made a diagnosis that Mr. Jerden had a brain tumor and recommended a

JERDEN v. AMSTUTZ 16119
craniotomy. On July 10, 2000, Dr. Amstutz performed a

craniotomy on Mr. Jerden, who was thereafter correctly diagnosed with multiple sclerosis based on pathology analysis of

the brain tissue removed during the operation. 

Plaintiffs, in their action for medical negligence, asserted

that a less invasive biopsy would have had fewer physical

implications and would have allowed a greater possibility of

recovery from the effects of the plaques formed in the brain

by the demyelination associated with multiple sclerosis. Plaintiffs alleged that Defendant failed to review adequately the

diagnostic MRI reports, radiology reports, and Mr. Jerden’s

medical history and symptoms, which indicated signs of multiple sclerosis. Plaintiffs also contended that Defendant was

negligent for failing to use less intrusive diagnostic methods

than the craniotomy and for failing to consult with qualified

specialists such as neurologists. 

The jury trial commenced on May 24, 2004. As pertinent

to this appeal, Plaintiffs presented testimony from two medical doctors, Dr. Karl Gross, a neurologist, and Dr. Martin

Johnson, a neurosurgeon, who both testified that Defendant

breached his standard of care and that this breach was the

cause of Plaintiffs’ injuries. Defendant countered with the

presentation of medical testimony from Dr. Elaine Edmonds,

a neurologist, and Dr. Edward A. Neuwelt, a neurosurgeon,

who both testified that the initial diagnosis of a brain tumor

was reasonable under the circumstances. In addition, the jury

heard testimony from Defendant Dr. Amstutz and from a

neurosurgical nurse practitioner, Mr. Bowser, who had

worked with Defendant since 1997 and who had assisted Dr.

Amstutz during Mr. Jerden’s operation. 

After a six-day trial, the jury returned a verdict for the

Defendant on June 1, 2004. On June 16, 2004, Plaintiffs filed

their motion for new trial which was denied on September 3,

2004. Plaintiffs appeal. 

16120 JERDEN v. AMSTUTZ
II

We first consider Plaintiffs’ contention that the district

court erred by granting a motion to strike testimony of Dr.

Gross, a neurologist, and instructing the jury that it could not

consider his testimony on the issue of negligence.1

[1] Oregon has adopted a locality rule in medical malpractice actions whereby physicians have “the duty to use that

degree of care, skill and diligence that is used by ordinarily

careful physicians or podiatric physicians and surgeons in the

same or similar circumstances in the community of the physician or podiatric physician and surgeon or a similar community.” Or. Rev. Stat. § 677.095 (2003) (last amended Aug. 5,

1997). Pursuant to Federal Rule of Evidence 601, the district

court was required to follow the Oregon locality rule when

presented with the testimony of out-of-town medical experts

who testify as to the appropriate standard of care for local

physician defendants. Under this evidentiary rule, out-of-town

experts must show “knowledge of what is proper conduct by

practitioners in the community or a similar community under

circumstances similar to those which confronted the defendant.” Creasey v. Hogan, 637 P.2d 114, 122 (Or. 1981). 

During the trial, on Wednesday, May 26, 2004, Dr. Gross

testified for Plaintiffs, stating that an ordinarily reasonable

surgeon would not have made the incorrect diagnosis and

would have referred the patient to a neurologist before conducting the operation. Dr. Gross did not expressly testify that

he had knowledge of the proper medical conduct within

Defendant’s community or a similar community. During the

testimony of Dr. Gross, counsel for Defendant objected based

on “lack of foundation, lack of qualification as to what a surgeon should do,” after asking Dr. Gross if he ever practiced

1We review rulings to admit or exclude evidence for an abuse of discretion and will not reverse absent prejudice. Watec Co., Ltd. v. Liu, 403 F.3d

645, 650 n.3 (9th Cir. 2005). 

JERDEN v. AMSTUTZ 16121
surgery. Although the district court did not at this time make

a ruling concerning this objection, Plaintiffs’ counsel in substance cured this objection by asking Dr. Gross about his

professional experience as a neurologist working with neurosurgeons. See Creasey, 637 P.2d at 118 (allowing the testimony of medical experts from another discipline in medical

malpractice actions on matters where the principles of both

schools concur). 

On May 28, 2004, Defendant moved to strike the portion

of Dr. Gross’s testimony relating to whether Defendant satisfied his standard of care. The record is not crystal clear on

whether the basis for the motion was disclosed when it was

made on May 28th, or on the last day of trial, June 1st, when

the motion was granted. However, this potential difference is

not material to our analysis which proceeds on the assumption

that the basis was disclosed on May 28, two days after Dr.

Gross’s testimony had concluded. Defendant argued that Dr.

Gross’s testimony relating to Defendant’s standard of care

was inadmissible because Dr. Gross, in his testimony two

days earlier, had not stated that he was familiar with the

proper medical conduct in Defendant’s community in compliance with the foundational requirement under Creasey.

2

 The

court granted the Defendant’s motion to strike on June 1, concluding that a necessary predicate for the testimony was not

2An expert can satisfy this requirement without actual knowledge of the

defendant’s community and may even testify that a nationally uniform

standard of care should govern the defendant’s conduct. See Mosley v.

Owens, 816 P.2d 1198, 1201-1202 (Or. Ct. App. 1991). Furthermore,

Defendant Dr. Amstutz himself introduced testimony of an out-of-town

neurologist stating an opinion as to Defendant’s standard of care which

was admitted after the neurologist acknowledged that she was familiar

with the standard of care governing the locality. Defendant’s witness

expressly testified that she was “familiar with the appropriate methods of

practice for doctors who take care of patients with MS and physicians who

actually diagnose MS such as Dr. Amstutz, who is a neurosurgeon in this

case practicing in Klamath Falls” and that she was “familiar with what is

appropriate care for those neurosurgeons under these circumstances.” 

16122 JERDEN v. AMSTUTZ
given, which the court described as a lack of “magic words.”

3

Shortly thereafter, the court instructed the jury: “You have

heard testimony from Karl Gross, M.D. This testimony should

be considered by you for a limited purpose only. You are

instructed that you may not use any of Dr. Gross’ testimony

as a basis for deciding whether Dr. Amstutz was negligent.”

Plaintiffs have argued on appeal that the limiting instruction regarding Dr. Gross’s testimony should not have been

given because the objection was untimely, and because the

phrasing of the instruction was overbroad. We focus on the

first contention, and consider the issue of the timeliness of the

objection to be dispositive in our assessment of whether trial

error by the district court occurred.4

The rule requiring timely objection to evidence in federal

trials is set forth explicitly in the Federal Rules of Evidence.

“Error may not be predicated upon a ruling which admits or

excludes evidence unless a substantial right of the party is

3

In ruling on the Defendant’s motion, the district court stated: “The

Court invited counsel to show the Court where in the transcript of Dr.

Gross’s testimony there was that necessary predicate. And counsel quite

candidly has said that the magic words, if you will, are not there or remain

— that she cannot find them either.” 

4Because Plaintiffs did not object to the wording of the instruction, their

challenge to the ambiguous language is waived. Fed. R. Civ. P. 51. Plaintiffs’ opposition to the motion to strike did not alert the district court to

Plaintiffs’ particular concerns about the language of the instruction and in

our view the lack of a specific objection on this ground cannot be justified

based on the “pointless formality” exception. Voohries-Larson v. Cessna

Aircraft Co., 241 F.3d 707, 714 (9th Cir. 2001). We have recognized only

a limited sphere for plain error in a civil case. As we held in Bird v. Glacier Electric Cooperative, Inc.: “We will review for plain or fundamental

error, absent a contemporaneous objection or motion for a new trial before

a jury has rendered its verdict, where the integrity or fundamental fairness

of the proceedings in the trial court is called into serious question.” 255

F.3d 1136, 1148 (9th Cir. 2001). Assuming, without deciding, that plain

error can ever be found under this standard as to jury instructions for

which objection was not given, the jury instruction given here without

objection does not meet our standard for plain error. 

JERDEN v. AMSTUTZ 16123
affected, and . . . a timely objection or motion to strike

appears of record, stating the specific ground of objection, if

the specific ground was not apparent from the context . . . .”

Fed. R. Evid. 103 (2005). 

[2] This rule is reflected in the guidance of a respected procedural treatise. “An objection must be made as soon as the

ground of it is known, or could reasonably have been known

to the objector, unless some special reason makes its postponement desirable for him and not unfair to the offeror.” 21

Charles Alan Wright & Kenneth W. Graham, Jr., Federal

Practice and Procedure § 5037.1 (2d ed. 2005) (citing John

H. Wigmore, Code of Evidence 25 (3d ed. 1942)). The

requirement of timely and specific objections “serves to

ensure that the ‘nature of the error [is] called to the attention

of the judge, so as to alert him [or her] to the proper course

of action and enable opposing counsel to take corrective measures.’ ” United States v. Gomez-Norena, 908 F.2d 497, 500

(9th Cir. 1990) (quoting Advisory Committee’s Note to Rule

103(a), 56 F.R.D. 183, 195 (1972)) (first alteration in original). 

[3] The specific basis for Defendant’s objection to Dr.

Gross’s testimony should have been asserted when Dr. Gross

testified as to Defendant’s compliance with his standard of

care without reciting that he had knowledge of the proper

medical conduct within Defendant’s community.5“An objection is ‘timely’ if it is made as soon as the opponent knows,

or should know, that the objection is applicable.” 1 Jack B.

Weinstein & Margaret A. Berger, Weinstein’s Federal Evi5Because Defendant’s objection during Dr. Gross’s testimony did not

make any reference to the community where Defendant practiced, it did

not give the Plaintiffs fair notice of the grounds for Defendant’s successful

motion to strike Dr. Gross’s testimony made on May 28, near the end of

the trial. See United States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir.

1990) (holding that “a party fails to preserve an evidentiary issue for

appeal not only by failing to make a specific objection, but also by making

the wrong specific objection.”) (citations omitted) (emphasis in original).

16124 JERDEN v. AMSTUTZ
dence § 103.11 (Joseph M. McLaughlin ed., 2d ed. 1997)

(footnotes omitted); see also San Antonio Cmty. Hosp. v. So.

Cal. Dist. Council of Carpenters, 125 F.3d 1230, 1238 (9th

Cir. 1997) (concluding that the failure to raise a hearsay

objection until the close of direct examination is a waiver of

the objection); McKnight v. Johnson Controls, Inc., 36 F.3d

1396, 1408 (8th Cir. 1994); Belmont Indus. v. Bethlehem Steel

Corp., 512 F.2d 434, 437-38 (3d Cir. 1975). 

Despite the apparent delay and the lack of timeliness of the

Defendant’s specific objection at issue, we recognize that

“trial courts have broad discretion in making evidence rulings

and handling late objections.” Home Indem. Co. v. Lane Powell Moss & Miller, 43 F.3d 1322, 1329 (9th Cir. 1995); see

also United States v. Achiekwelu, 112 F.3d 747, 754 (4th Cir.

1997) (“Even when a district court admits evidence without

objection, the district court has the discretion to grant a subsequent motion made after the close of the evidence to exclude

the evidence.”). However, we hold here that the court’s late

exclusion of Dr. Gross’s testimony was an abuse of its discretion because the untimely decision unfairly prevented Plaintiffs from providing a curative response. 

[3] We have adhered to the general rule that neither the district court nor the opposing party may unfairly deprive parties

of the opportunity to lay a foundation in support of their evidence. The opposing party may not delay objections until

after trial such that it becomes too late to resolve them effectively. See Bartleson v. United States, 96 F.3d 1270, 1278

(9th Cir. 1996) (holding that an objection not raised during

trial is waived because the delay “denied [the witness] the

opportunity to lay a better foundation for his testimony, and

potentially denied the government the opportunity to introduce other evidence on the issue”). Also, the district court

may not exclude evidence before trial without allowing the

parties to lay a foundation for its admission. See Wendt v.

Host International, Inc., 125 F.3d 806, 814 (9th Cir. 1997)

(holding that the district court abused its discretion in excludJERDEN v. AMSTUTZ 16125
ing evidence on summary judgment without providing the

parties with “the opportunity respectively to lay a foundation

for the admission of the survey or to challenge the adequacy

of the foundation”). Our prior decisions viewed together support the principle that an objection to admission of evidence

on foundational grounds must give the basis for objection in

a timely way to permit the possibility of cure. 

This principle is reinforced by decisions of other circuits

that have required district courts to give parties an opportunity

to respond to objections to the foundation of their evidence.

“Given the ‘liberal thrust’ of the federal rules it is particularly

important that the side trying to defend the admission of evidence be given an adequate chance to do so.” Padillas v.

Stork-Gamco, Inc., 186 F.3d 412, 417 (3d Cir. 1999) (citation

omitted). “Counsel should not ‘sandbag’ Daubert concerns

until the close of an opponent’s case, thereby placing opposing counsel and the trial court at a severe disadvantage.”

Alfred v. Caterpillar, Inc., 262 F.3d 1083, 1087 (10th Cir.

2001).6

[4] Considering our precedent and that of other circuits

interpreting Rule 103, we hold that the exclusion of testimony

for lack of foundation is improper following an untimely

objection if such objection unfairly deprives the proponents of

the testimony of an opportunity to cure the objection. Applying this rule here, we conclude that the district court did not

give Plaintiffs an opportunity to lay a foundation for the testimony after the basis of Defendant’s objection to the existing

foundation was belatedly made clear. Any foundational flaw

in the testimony of Dr. Gross as presented likely could have

6

In contrast to this reasoning, the Fourth Circuit in United States v.

Achiekwelu sustained the granting of an untimely objection, which was

asserted after closing arguments, that defendant failed to provide authentication for a key document. 112 F.3d at 754. The court there held that Rule

103’s requirement of timely objections only applied to the appellate

court’s ability to review erroneous rulings, and did not limit the district

court’s discretionary power to grant these objections. Id.

16126 JERDEN v. AMSTUTZ
been fixed if Defendant had disclosed to Plaintiffs the basis

for his objection when Dr. Gross was still on the witness stand

and available to amplify his testimony.7

[5] Defendant contended at oral argument that his objection

at the close of Plaintiffs’ evidence was timely because Plaintiffs failed to present an essential element of their case so that

the testimony was not improper until Plaintiffs closed their

case without providing the necessary predicate. However, we

reject this argument because Oregon case law describes the

foundation requirement as a rule of evidence, and not as an

element of defendant’s standard of care. See Creasey, 637

P.2d at 121 (stating that while the definition of Defendant’s

standard of care is a rule of law, “[t]he evidence question is

one of foundation or competency: Can an out-of-town expert

testify as to the propriety of a local practitioner’s treatment

absent some knowledge of the standard of medical treatment

in the community?”). Therefore, the testimony of Dr. Gross

was immediately objectionable once Dr. Gross stated his

opinion on the standard of care if he had not satisfied all necessary foundation for his opinion testimony.8

7The district court stated in its order denying Plaintiffs’ motion for a

new trial that Plaintiffs could have corrected the foundational flaw by

arranging for the witness to testify by telephone. Plaintiffs assert that this

option was not actually presented to them when the court considered the

motion to strike. Testimony in open court by telephone is permitted “for

good cause shown in compelling circumstances and upon appropriate safeguards,” Fed. R. Civ. P. 43(a). In light of the district court’s error in validating an untimely objection, it would be unfair to require Plaintiffs to

have initiated the option of a telephone deposition supplementing Dr.

Gross’s testimony given the short amount of time before the trial was set

to end and the relative disadvantage of having a key expert witness testify

by telephone. 

8This conclusion is strengthened by considering the procedural context.

If Defendant had intended to argue in the district court that Plaintiffs had

failed to present evidence as to all elements of their claim, Defendant

might have tried to move for a directed verdict rather than for an instruction limiting portions of Dr. Gross’s testimony. 

JERDEN v. AMSTUTZ 16127
[6] A timely and specific objection to Dr. Gross’s knowledge of the standard of medical conduct in Defendant’s community would have allowed Plaintiffs to attempt to resolve the

foundational concern by asking Dr. Gross whether he had

knowledge of the proper standard for Defendant’s community

or a similar community. The district court should have given

Plaintiffs an opportunity to lay a proper foundation under the

locality rule, if they could do so, before the court decided to

grant Defendant’s untimely motion and to severely limit the

jury’s consideration of Dr. Gross’s testimony. By striking key

portions of Dr. Gross’s testimony that supported the negligence claim, without providing Plaintiffs with an opportunity

to correct the foundational requirement of knowledge of local

medical standards, the district court abused its discretion. 

III

Plaintiffs also assert error in the admission of Mr. Bowser’s

testimony concerning his observations of the MRA report,

which are a special type of MRI report. Mr. Bowser is a

neurosurgical nurse practitioner who acted as Defendant’s

surgical assistant during the operation on Mr. Jerden. He testified that he routinely reviewed imaging reports before operations although he was not licensed to interpret them. 

Plaintiffs examined Mr. Bowser as an adverse witness during their case-in-chief. During cross-examination, Defendant

asked Mr. Bowser about his observations of the MRA report

of Mr. Jerden and whether he thought that they indicated a

brain tumor. Defendant argues that Plaintiffs failed to make

a timely objection to this testimony. The transcript shows that

Plaintiffs’ counsel promptly and specifically objected when

these questions were raised by the Defendant but the objection was overruled by the court.9

 The district court held that

9Defendant’s argument that Plaintiffs “opened the door” to this testimony also fails because Plaintiffs never sought the opinion of Mr. Bowser.

“Under the rule of curative admissibility, or the ‘opening the door’ doc16128 JERDEN v. AMSTUTZ
these statements were admissible because Mr. Bowser was

testifying as a fact witness and did not state any opinions as

an expert.10

[7] Lay witnesses can permissibly base opinion testimony

upon their experience, but the Federal Rules of Evidence

require that lay opinion testimony be “(a) rationally based on

the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a

fact in issue, and (c) not based on scientific, technical, or

other specialized knowledge within the scope of Rule 702.”

Fed. R. Evid. 701. “The mere percipience of a witness to the

facts on which he wishes to tender an opinion does not trump

Rule 702.” United States v. Figueroa-Lopez, 125 F.3d 1241,

1246 (9th Cir. 1997) (holding that opinions were based on

specialized knowledge within the meaning of Rule 702

because they were “properly characterized as testimony based

on the perceptions, education, training, and experience of the

witness”). 

Mr. Bowser’s testimony contained detailed and scientific

observations about the MRA report and the conclusions that

he interpreted the MRA of Mr. Jerden’s brain to show signs

trine, the introduction of inadmissible evidence by one party allows an

opponent, in the court’s discretion, to introduce evidence on the same

issue to rebut any false impression that might have resulted from the earlier admission.” United States v. Whitworth, 856 F.2d 1268, 1285 (9th Cir.

1988) (citation omitted). Plaintiffs questioned Mr. Bowser about the actual

diagnosis made before the surgery and how this diagnosis affected their

surgical procedure. The diagnosis and its effect on the surgery is a fact

independent of any personal opinion held by Mr. Bowser. Plaintiffs did

not attempt to introduce inadmissible expert opinion from these questions

such that Defendant would be permitted to follow them through the door.

10In its order denying Plaintiffs’ motion for a new trial, the court upheld

its admission of Mr. Bowser’s testimony and its overruling of Plaintiffs’

objection by stating that the “trial transcript shows that Mr. Bowser did

not testify as an expert, and that he only testified as to what he did in his

practice, and specifically as to plaintiff Daniel Jerden’s care.” 

JERDEN v. AMSTUTZ 16129
of a brain tumor. Mr. Bowser’s testimony did not merely

relate his factual observations of what occurred that was

within his competence to describe; instead, he rendered opinions and inferences that he drew from his observations and

that, as he himself admitted, he was not competent to provide.

[8] Because of its incorrect conclusion that Mr. Bowser was

simply testifying about facts, the district court did not use the

proper standards to determine whether the opinions expressed

by Mr. Bowser should have been characterized as expert or

lay opinions. If the district court wanted to consider Mr.

Bowser’s opinion as a lay opinion, then it was necessary to

assess all requirements of Federal Rule of Evidence 701: that

the opinion is rationally based on the witness’s perceptions,

that it is helpful to a trier of fact, and that it is not based on

scientific, technical or other specialized knowledge.11

Plaintiffs are entitled to a thorough evaluation of Mr.

Bowser’s qualifications to interpret an MRA report as either

a qualified expert or as a lay witness entitled to give opinion,

in light of the division in the testimonial opinions that were

given by undisputedly qualified experts. See Figueroa-Lopez,

125 F.3d at 1246 (“Trial courts must ensure that experts are

qualified to render their opinions and that the opinions will

assist the trier of fact.”). While the privileges granted to Mr.

Bowser by the state licensing board are not dispositive of his

right to testify, he must show greater expertise in the field

before he can be deemed qualified to opine on the compli11From the record before us now, Mr. Bowser’s statements that the

MRA report showed a brain tumor appear to be in the nature of proffered

expert opinions based on his experience as a nurse practitioner working in

neurosurgery. If Mr. Bowser lacked the specialized experience to state

these opinions as an expert consistent with Federal Rule of Evidence 702,

then the record before us does not indicate that his opinions would likely

be admissible as lay opinion testimony because the record does not disclose a rational basis in his perceptions or a legitimate capacity to help the

trier of fact with lay opinion. 

16130 JERDEN v. AMSTUTZ
cated and divisive issue of this MRA report. On the current

record, we are skeptical that he meets this standard. 

[9] We conclude that it was error to permit Mr. Bowser to

give opinion testimony interpreting the MRA report as showing a tumor when there was no testimony showing that he was

qualified as an expert to do so, within the scope of Federal

Rule of Evidence 702, or otherwise permitted to give lay

opinion testimony consistent with the standards of Federal

Rule of Evidence 701. 

IV

Although we have concluded that the district court erred in

striking and limiting the testimony of Dr. Gross in light of the

untimely specificity of the objection, and that the district court

also erred in admitting Mr. Bowser’s testimony on the same

issue, these conclusions do not end our inquiry. 

[10] Evidentiary errors to warrant reversal must affect the

substantial rights of the appellant. Obrey v. Johnson, 400 F.3d

691, 699 (9th Cir. 2005) (citing Fed. R. of Evid. 103 and Fed.

R. Civ. P. 61). However, we start with “a presumption of prejudice.” Id. at 701. As pertinent here, that presumption may be

rebutted if Defendant can show that, more likely than not, the

jury would have reached the same verdict if Dr. Gross’s testimony had been admitted on negligence and Mr. Bowser’s testimony interpreting the MRA report had been excluded. 

[11] We are considering these errors cumulatively. See,

e.g., Gonzales v. Police Dept., City of San Jose, Cal., 901

F.2d 758, 762 (9th Cir. 1990) (“Considered together, there is

no doubt that a remand is required in light of the cumulative

effect of the two material errors.”); Gordon Mailloux Enters.,

Inc. v. Firemen’s Ins. Co. of Newark, N.J., 366 F.2d 740, 742

(9th Cir. 1966) (“We conclude it too must be reversed;

although the errors requiring reversal, if considered separately, were perhaps harmless, their cumulative effect was

JERDEN v. AMSTUTZ 16131
prejudicial.”). Many of our sister circuits have similarly held

that cumulative error in a civil trial may suffice to warrant a

new trial even if each error standing alone may not be prejudicial. See, e.g., Beck v. Haik, 377 F.3d 624, 645 (6th Cir. 2004)

(“Since a jury reaches its verdict in light of the evidence as

a whole, it makes no sense to try to analyze errors in artificial

isolation, when deciding whether they were harmless.”);

Frymire-Brinati v. KPMG Peat Marwick, 2 F.3d 183, 188

(7th Cir. 1993); Malek v. Fed. Ins. Co., 994 F.2d 49, 55 (2d

Cir. 1993); Hendler v. United States, 952 F.2d 1364, 1383

(Fed. Cir. 1991); but see SEC v. Infinity Group Co., 212 F.3d

180, 196 (3d Cir. 2000). 

[12] This case involved multiple medical experts on both

sides testifying as to the proper interpretation of the MRI and

MRA reports and whether Defendant’s mistaken interpretation of the reports as showing a tumor, rather than demyelination, was a breach of his standard of care. The jury was

required to decide which side to believe, assessing credibility

of witnesses and determining how much weight to give the

views of each. We cannot say that “it is more probable than

not that the jury would have reached the same verdict” if Dr.

Gross’s testimony had not been limited and if Mr. Bowser’s

testimony had been. Obrey, 400 F.3d at 701. We conclude

that the errors affected a substantial right of the parties and

constituted reversible error warranting a new trial.12 We

accordingly reverse the district court’s judgment and remand

for further proceedings consistent with this disposition. 

REVERSED AND REMANDED.

12Because we reverse on these evidentiary errors, we need not consider

Plaintiffs’ further argument that a new trial was warranted because of

Plaintiffs’ counsel’s belated discovery that Defendant Amstutz had a prosthetic eye. 

16132 JERDEN v. AMSTUTZ