UNITED STATES COURT OF APPEALS TENTH CIRCUIT

EDWARD POCHE; CYNTHIA POCHE, Plaintiffs–Appellees,

v. RAOUL JOUBRAN, MD; GASTROENTEROLOGY ASSOCIATES, P.C., Defendants–Appellants, MARY E. MACGUIRE, MD - Doctor of Medicine; JAMES ANDERSON; WYOMING SURGICAL ASSOCIATES, PC, Defendants,

--------------------------------------- UNITED STATES OF AMERICA, Intervenor–Appellee. No. 09-8055 (D.C. No. 2:07-CV-00213-CAB) (D. Wyo.)

ORDER AND JUDGMENT *

Before KELLY , HOLLOWAY , and LUCERO , Circuit Judges.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral es toppel. This court generally disfavors the citation of orders and judgments; nevertheless , an order and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 26, 2010
Elisabeth A. Shumaker Clerk of Court- 2 - Dr. Raoul Joubran and Gastroenterolo gy Associates, P.C., (collectively, “Joubran”) appeal a jury verdict in favor plaintiffs Edward and Cynthia Poche. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I In February 2005, Army Sergeant Edward Poche underwent surgery to remove his gallbladder. In July of the same yea r, Poche sought treatm ent from Joubran for abdominal pain. Joubran performed an esophagogastroduodenoscopy (“EGD”) 1 to identify the source of the pain. Based on the EGD findings, Joubran subsequently performed an endoscopic retrograde cholangiopancreatography (“ERCP”) 2 and a sphincterotomy. 3 Poche was discharged from th e hospital the evening of th e ERCP, but returned the next morning with severe abdominal pain. Joubran examined Poch e two days after the ERCP surgery, and contacted a surgeon who examined Poche the fo llowing day. The surgeon diagnosed Poche with a perforation of the duodenum that required emergency surgery. Poche’s condition continued to deteri orate, and a third physician performed five

1 In an EGD, a physician inserts a scope down the esophagus and through the stomach into the duodenum to exam ine the upper digestive tract.

2 An ERCP involves inser ting a scope into the duodenum via the esophagus. A small catheter is then inserted into the common bile duct.

3 A sphincterotomy is the cuttin g of a sphincter muscle.- 3 - additional surgeries to try to stabilize his condition. After several weeks, Poche was transferred to Bethesda Naval Hospital, where he endured mo re than two dozen additional surgeries and recove red for approximately four a nd a half months. The United States covered the cost of Poche’s medical care and paid Poche’s salary during his
recovery. Invoking diversity jurisdiction, Poche and his wife Cynthia filed suit in federal district court against Joubran, two other physicians, and their medical corporations, asserting the defendants neglig ently breached their duties of care in their treatment of Poche. The United States succes sfully moved to intervene to assert its right to recovery under the Medical Care Recovery Act, 42 U.S.C. § 2651 et seq. The case was tried before a jury in Marc h and April 2009. During voir dire, each side was provided with three peremptory ch allenges. Joubran did not object to the number of peremptory challenges or contend that he had been deprived of his right to an impartial jury. Counsel for Joubran st ated he was satisfied with the jury. At trial, plaintiffs called a board-certif ied gastroenterologist to testify regarding the standard of care. They also elicited expert testimony from general surgeon Dr. David Livingston after the district c ourt denied Joubran’s motion in limine seeking to preclude such testimony, and cross-ex amined two other medical expe rts retained by Joubran’s codefendants, Drs. Demarest and Mackersie. Th e jury ultimately return ed a verdict in favor of the Poches against Joubran and one co -defendant. Joubran timely appealed.
II- 4 - Joubran requests a new trial, arguing that the district court erred in permitting Livingston to testify as an e xpert and by allowing the Poch es to cross-examine medical experts retained by Joubran’s co-defendants re garding the applicable standards of care. “We review de novo the question whether the district court applied the proper legal standard in admitting an expert ’s testimony; we then review for abuse of discretion its actual application of the standard.” Neiberger v. FedEx Ground Package Sys. , 566 F.3d 1184, 1189 (10th Cir. 2009) (citation omitted). We will not disturb the trial court’s decision to admit eviden ce unless we have “a definite and firm conviction that the lower court made a clear error of judgment or exce eded the bounds of permissible choice in the circumstances.” McEwen v. City of Norman , 926 F.2d 1539, 1553-54 (10th Cir. 1991) (quotations omitted). Moreove r, “if there is error in th e admission or exclusion of evidence, we will set aside a jury verdict only if the e rror prejudicially affects a substantial right of a party.” Hinds v. General Motors Corp. , 988 F.2d 1039, 1049 (10th Cir. 1993) (citations omitted). In the Tenth Circuit, a district court a ssesses the admissi bility of expert testimony using a two-step analysis: First, the court must determine if the expert is qualified by “knowledge, skill, experience, tr aining, or education,” Fed. R. Evid. 702, to render an expert opinion. See Ralston v. Smith & Nephew Richards, Inc. , 275 F.3d 965, 969 (10th Cir. 2001). If the expert is so qualified, the court must then assess “whether her opinions were ‘reliable’ under Daubert [v. Merrell Dow Pharmaceuticals, Inc.] , 509 U.S. 579 [(1993)], and Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137 (1999).” Ralston , 275- 5 - F.3d at 969 (alternative citations omitted).

A Joubran asserts that we sh ould review the district c ourt’s decision to admit the challenged expert test imony de novo because th e court failed to properly assess reliability under Daubert . This argument mistakes our standard of review. We review de novo only “whether the district court applied the pr oper standard and ac tually performed its gatekeeper role in the first in stance.” Dodge v. Cotter Corp. , 328 F.3d 1212, 1223 (10th Cir. 2003). There can be little doubt that the di strict court properly recognized its gatekeeping function. Before pe rmitting Livingston to opine as to Joubran’s treatment of Poche, the court allowed Joubran’s counsel to repeatedly voir dire the witness and independently asked several que stions regarding Livingston’s experience diagnosing the need for ERCPs in patients pres enting abdominal pain. Only after the court was satisfied that Livingston had the “experience . . . suffi cient to form an opi nion on these matters” was the testimony allowed. Similarly, wh en Joubran objected to the Poches’ crossexamination of Demarest regarding his pro cedure for diagnosing duodenum perforations, the court permitted only questions that “this doctor, particularly, has the expertise to answer.” Joubran did not object at the tim e Mackersie provided similar testimony. Although Joubran frames this issue as one attacking the district court’s failure to conduct the proper analysis, he is actually challenging only the manner in which the court considered his objection. Because the court “p erformed its gatekeeper role in the first- 6 - instance,” id. , we review its application of Daubert for abuse of discretion.

B In a civil action, state law controls whet her a witness is compet ent to testify “with respect to an element of a cl aim or defense as to which St ate law supplies the rule of decision.” Fed. R. Evid. 601; see also McDowell v. Brown , 392 F.3d 1283, 1295 (11th Cir. 2004); Legg v. Chopra , 286 F.3d 286, 289-93 (6th Cir. 2002). Joubran contends that Wyo. Stat. § 1-12-601 supplies such a rule of decision. That statute provides that a plaintiff alleging negligence by a health care provider who “is certified by a national certificating board or association” must esta blish that the defendant “failed to act in accordance with the standard of care adhered to by” the certifying body. Id. Joubran does not argue that evidence as to the standard of care for board-certified gastroenterologists was lacking; the Poches called a board-cer tified gastroenterologist to provide that testimony. Instead, Joubran clai ms that § 1-12-601 establishes a per se rule that only board-certified specialists may provide expert testimony against a boardcertified specialist. He cites to Legg , in which the Sixth Circuit interpreted a similar Tennessee state statute. 286 F.3d at 290-91. However, the Tennessee statute under consideration in that case expressly provided that individuals lack ing board certification are not “competent to testify in any court of la w” as to the proper standard of care. Tenn. Code § 29-26-115(b). The text of the Wy oming statute does not include a similar restriction on witness competency—it does not reference witness comp etency at all, but- 7 - simply states the elements of a malpractice action. Moreover, Wyoming case law belies Joubr an’s interpretation. In Armstrong v. Hrabal , 87 P.3d 1226 (Wyo. 2004), pl aintiffs sought to establis h the standards of care for an emergency room physician by introduci ng testimony from a phys ician who was boardcertified in internal medicine and infectious disease. Id. at 1232-33. The trial court sustained an objection to preclude this testim ony on the ground that the proffered expert was “not in the same line of practice.” Id. at 1233. The Wyoming Supreme Court reversed, holding that the expe rt was “sufficiently familiar with the standard of care in treating infectious disease in the emergency room that [his] testimony would assist the jury in determining f acts in issue.” Id. at 1237. Neither the text of the statute nor the in terpretive Wyoming case law suggests the per se rule Joubran asserts here . Accordingly, the district c ourt did not err by declining to disqualify all medical experts merely because they are not board-certified gastroenterologists. C In addition to his statutory argument, Jo ubran claims that Li vingston, Demarest, and Mackersie were not qualified to provid e expert testimony under Fed. R. Evid. 702 and Daubert

. 4 We disagree.

4 It is unclear whether Joubran contends that other provisions of Wyoming law supply rules addressing the qualification of expe rts applicable here through Rule 601. To the extent he advances such an argument, we note that Wyo. R. Evid. 702, like its federal Continued . . .- 8 - The district court did not abuse its disc retion in admitting Livingston’s testimony. Livingston rendered standard of care opinions regarding two issues: (1) when Joubran should have consulted a surg eon regarding Poche’s condition after Poche retu rned to the hospital; and (2) whether Joubran should have performed the ERCP and sphincterotomy without first performing non-invasive procedur es to diagnose Poche’s abdominal pain. We are not convinced that the district court made a clear error of judgment in admitting this testimony. Livingston is a general surg eon and chief of the trauma division at a tertiary care center, serves as the Wesley J. Hue Professo r of Trauma Surgery at New Jersey Medical School, and has written on abdominal emergencies and abdominal trauma. He encounters six to twelve duodenal injuries a y ear, including perforations, and his regular duties include diagnosing gastro intestinal perforati ons and determining whether to operate. As for his qualificati ons to testify regarding the second issue, Livingston testified he had extensive experience diagno sing abdominal pain, interpreting EGDs, and diagnosing whether E RCPs are necessary as part of his “day-to-day” work. Joubran’s assertions that Livingston was not qualified to testif y because he does not perform ERCPs are unavailing. Livingston did not testify about the standard of care in performing ERCPs, nor did he suggest th at Joubran negligentl y conducted Poche’s ERCP. Livingston only testified as to the st andard of care for deciding whether an ERCP

counterpart, provides that a witness qualifies as an expert if she possesses the “knowledge, skill, experience, tr aining, or education” to a ssist the trier of fact in understanding the evidence or determ ining a fact at issue.- 9 - is proper and when a surgical consult should be sought—matters in the overlapping areas of expertise of general su rgery and gastroenterology. 5 Joubran similarly argues that the district court erred in permitting the Poches to question Joubran’s co-defendants’ experts w ith respect to the standard of care for diagnosing duodenum perforati ons. Like Livingston, however, these witnesses did not stray from their areas of expertise. De marest was cross-examined regarding his experience diagnosing abdominal perforations . He is a board-certified general and critical care surgeon, who diagnoses and tr eates duodenum perforations as “part and parcel of [his] practice.” Specifically, Dema rest testified that he was experienced in managing duodenum perforations following ERCPs. 6
Mackersie was also cross- examined regarding his practice in diagnosing duodenum perforations. Like Demarest, Ma ckersie is a board-certified general and critical care surgeon. Mackersie also testified that he was experienced in managing duodenum perforations following ERCPs. Beca use none of these witnesses strayed from his qualified area of expertise, we conclude that admitting their testimony fell within the “bounds of permissible choice in the circumstances.” McEwen , 926 F.2d at 1554

5 The Wyoming courts have recognized that a standard of care may overlap several disciplines. See Beavis v. Campbell County Mem. Hosp. , 20 P.3d 508, 512-13 (Wyo. 2001).

6 Moreover, Demarest testified that he wa s not critical of Joubran’s treatment, and Joubran agreed that Demarest’s testimony did not harm his case.- 10 - (quotation omitted).
D Joubran further contends that the district court violated the law of the case doctrine by admitting the testimony from Ma ckersie and Demarest after a magistrate judge denied the Poches’ motion to co mpel an additional deposition of Mackersie. Under the law of the case doctrine, “when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent st ages in the same case .” Dobbs v. Anthem , 600 F.3d 1275, 1279 (10th Cir. 2 010). But “[o]nly final judgments may qualify as law of the case,” Unioil, Inc. v. Elle dge (In re Unioil, Inc.) , 962 F.2d 988, 993(10th Cir. 1992), and “district courts generally remain free to reco nsider their earlier in terlocutory orders,” Been v. O.K. Indus. , 495 F.3d 1217, 1225 (10th Cir. 2007); see also Allison v. Bank OneDenver , 289 F.3d 1223, 1247 (10th Cir. 2002) (“A lower court’s ability to depart from its own prior decisions is discretionary.”). The magistrate judge’s order upon which Jo ubran relies was issued in response to a motion filed by the Poches seeking sanctions and an additional depos ition of Mackersie. The Poches filed this motion af ter counsel for a co-defendant instructed Mackersie not to answer questions at his deposition. Alth ough the magistrate judge’s order discusses Mackersie’s qualifications to op ine on gastroenterology issues, it did not purport to be the final order governing the question of admissi bility; rather, the order addressed the scope of discovery. Because the order did not fina lly decide the issue of admissibility, the law of the case doctrine did not preclude the dist rict court’s decision to permit Demarest and- 11 - Mackersie to testify. 7
III Joubran’s final argument is that he was deni ed a fair and impar tial jury because he was not granted extra peremptory challenge s, resulting in a jury biased against a defendant of Middle Eastern descent becau se two jurors shar ed Poche’s military background. Because Joubran di d not object below, we review this claim for plain error.
See Hidalgo v. Fagen, Inc. , 206 F.3d 1013, 1020 (10th Ci r. 2000). To establish plain error, Joubran must demonstrate “plain error th at affected [his] substantial rights. The plain error exception in civil cas es has been limited to errors which seriously affect the fairness, integrity or public re putation of judicial proceedings. It is an extraordinary, nearly insurmountable burden.” Phillips v. Hillcrest Med. Ctr. , 244 F.3d 790, 802 (10th Cir. 2001). By statute, each party in a civil case is entitled to three peremp tory challenges, but “[s]everal defendants . . . may be considered as a single party for the purposes of making challenges.” 28 U.S.C. § 1870. Joubran conte nds that, although he and his co-defendants were granted a total of three peremptory challenges, he was denied a fair and impartial jury because he was not granted extra perempto ry challenges. Due pr ocess entitles a civil litigant to a fair trial, includ ing an impartial jury. See Skaggs v. Otis Elevator Co. , 164 F.3d 511, 515 (10th Cir. 1998). “To violate due process, the bias must affect the juror’s

7 Further, the order does not mention De merest, and thus cannot govern the admissibility of his testimony.- 12 - ability to impartially consider the ev idence presented at trial.” Id. Joubran has failed to present evidence de monstrating jurors were plainly biased such that they could not impartia lly consider the evidence at tr ial. The mere fact that two jurors had military background s, as did Poche, does not su ggest they were biased. Joubran points to an exchange that occurred while Poche wa s attempting to explain the duties of a warrant officer. Poche directed his testimony to a particular juror, stating: “A warrant officer—how do I explain this? I kn ow you will understa nd. Maybe you can help explain it.” An unidentified juror re plied, “Subject matter expert.” Although unusual and perhaps even inappropriate, th is exchange falls well short of meeting Joubran’s “nearly insurmountable burden” to show that a plain error affected his substantial rights and “the fairness, integrity or public reputation of j udicial proceedings.” Phillips , 244 F.3d at 802.
IV For the forgoing reasons, we AFFIRM

.

Entered for the Court

Carlos F. Lucero Circuit Judge