United States Court of Appeals

FOR THE EIGHTH CIRCUIT

 

No. 97-3703

 

Loyal Gunderson, Executor of the *

Estate of Nina Gunderson, *

*

 Plaintiff-Appellee, *

*

v. * Appeal from the United States

* District Court for the

Steven W. Bigg, * Eastern District of Missouri.

*

 Defendant-Appellant, *

*

DePaul Health Center, a corporation, *

*

 Defendant. *

 

Submitted: May 12, 1998

 Filed: June 3, 1998

 

Before BOWMAN, Chief Judge, HEANEY and HANSEN, Circuit Judges.

 

HEANEY, Circuit Judge.

Steven W. Bigg, M.D. appeals from a judgment in the sum of $355,000 entered

pursuant to a jury verdict in that amount and from denials of his motions for relief from

judgment, judgment as a matter of law with respect to amending the judgment,
2

remittitur, or in the alternative for a new trial. We affirm as to all issues except

remittitur. As to that issue, we grant a remittitur in the sum of $128,000.

Appellant’s initial argument is that this case should be revised or remanded for

a new trial because the verdict director for Gunderson’s claim against Bigg was

erroneous in that one or more of the disjunctive allegations were not supported by

substantial evidence. The instruction read as follows:

Your verdict must be for the plaintiff, Nina L. Gunderson, if you

believe:

First, defendant Steven W. Bigg, M.D., used medical instruments

or devices that were either too hot to be used upon plaintiff, defective or

not operating correctly, and

Second, defendant Steven W. Bigg, M.D. was thereby negligent,

and 

Third, as a direct result of such negligence plaintiff sustained

damage.

(App. of Appellant at 94.)

We have reviewed the record carefully and are convinced that when the

instructions are read in their entirety, they fairly and accurately submitted the issues to

the jury. Dupre v. Con Eng’g, Inc. 112 F.3d 329, 335 (8th Cir. 1997). We believe that

the jury clearly understood that Dr. Bigg could only be liable if he used a speculum that

was too hot. Thus, even if the instruction was unartfully drafted, it did not mislead the

jury or unfairly prejudice Dr. Bigg. 

Dr. Bigg’s second argument is that judgment as a matter of law should be

granted because Gunderson failed to make a submissible case of malpractice. We
3

disagree. Missouri law requires that a plaintiff plead and prove (1) that an act or

omission of the defendant failed to meet the requisite medical standard of care, (2) that

the act or omission was performed negligently, and (3) a causal connection between the

act or omission and the injury sustained by the plaintiff. Tempkins v. Kusama, 822

S.W.2d 463 (Mo. App. E.D. 1991). There is more than sufficient evidence to support

each required element. Not only did plaintiff’s expert testimony support each element,

but the operating nurses warned Dr. Bigg that the speculum was too warm or hot. 

Dr. Bigg’s final argument is that the award of future medical damages in the sum

of $138,000 is not supported by substantial evidence. We agree and direct the district

court to enter a remittitur in the sum of $128,000. There simply is little or no evidence

to support a verdict of more than $10,000, the sum asked for in Gunderson’s closing

arguments.

We therefore affirm in part, reverse in part, and remand to the district court to

order a remittitur in the sum of $128,000.

A true copy.

Attest.

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.