1District Judge of the Eastern District of Texas, sitting by

designation. 

 

2This suit was originally filed in 1988 by Regina Diaz and

her parents against sixteen different health care providers. 

Many of these parties were dropped from the suit before the case

went to trial in 1993. By the time this case was presented to a

jury, Ms. Diaz was the sole plaintiff, and Baylor College of

Medicine, Dr. Temple Williams, Dr. Major Bradshaw and Dr. Pedro

Frommer (Appellees) were the defendants.

Although formally naming Dr. Victor Rivera, his

physician's assistant and Dr. Frommer in this appeal,

Appellant fails to specify any error with respect to these

appellees in her brief. Accordingly, the court will not

entertain an appeal as to these three individuals. Matter

of Texas Mortgage Servs. Corp., 761 F.2d 1068, 1073 (5th

Cir.1985) ("issues not raised on appeal in the brief of the

Appellant may be considered waived, and they cannot be

1

United States Court of Appeals,

Fifth Circuit.

No. 93-2928.

Regina DIAZ, et al., Plaintiffs,

Regina Diaz, Plaintiff-Appellant,

v.

The METHODIST HOSPITAL, et al., Defendants,

Baylor College of Medicine, et al., Defendants-Appellees.

March 6, 1995.

Appeal from the United States District Court for the Southern

District of Texas.

Before BARKSDALE and PARKER, Circuit Judges, and COBB, District

Judge.1

COBB, District Judge:

Appellant, Regina Diaz, brought suit in federal district court

alleging that, while in the care of Appellees, she received

negligent medical treatment that caused her to become deaf.2 The
noticed or entertained by the Court of Appeals"). 

2

jury found in favor of Appellees. Appellant's post-trial motion

requesting relief from judgment or, in the alternative, a new trial

was denied. For the reasons set out below, we AFFIRM the ruling of

the district judge.

BACKGROUND

On January 3, 1987, Regina Diaz was severely injured in an

automobile accident in her hometown of Merida, Mexico. Ms. Diaz

was rushed to a Merida hospital. The doctors there determined that

amputation of Ms. Diaz's left leg was necessary to save her life.

Despite the treatment she received in Merida, Ms. Diaz's condition

worsened over the next 48 hours. Her accident produced

life-threatening renal failure and infection.

In an effort to save her life, Ms. Diaz was transported by air

ambulance to the Texas Medical Center in Houston, Texas. On

arrival, Ms. Diaz was in septic shock with decreased kidney

function, and her remaining leg had developed gangrene.

Numerous medications were administered in an effort to regain

kidney function and stave off the infection. These medications

included several loop diuretics and an aminoglycoside antibiotic,

Amikacin. Ms. Diaz's renal function was restored and, although it

was necessary to amputate her right leg, she eventually overcame

the infection. Unfortunately, the medication which saved her life

apparently had a side-effect; Ms. Diaz contends that the

antibiotics produced severe bilateral loss of hearing.

On December 23, 1988, Regina Diaz, and her parents, Illeana
 

3Rule 59(a) and 60(b)(3) provide:

A new trial may be granted to all or any of the parties

and on all or part of the issues in an action where

there has been a trial by jury, for any of the reasons

for which new trials have heretofore been granted in

actions at law in the courts of the United States.

Fed.R.Civ.P. 59(a).

On motion and upon such terms as are just, the court

may relieve a party or a party's legal representative

from a final order or judgment, order or proceeding for

the following reasons: ... (3) fraud (whether

heretofore denominated intrinsic or extrinsic),

misrepresentation, or other misconduct of an adverse

party.

Fed.R.Civ.P. 60(b)(3). 

3

Diaz and Rodrigo Diaz, filed suit against Baylor College of

Medicine, Methodist Hospital and various physicians. She

maintained that these defendants could have prevented her loss of

hearing with proper daily monitoring of her blood serum

aminoglycoside levels.

Discovery was conducted for almost five years. The parties

and numerous medical experts were deposed. The case was tried

before a jury from August 9 to August 20, 1993. The jury returned

a verdict in favor of the defendants.

On October 4, 1993, before final judgment was entered, Ms.

Diaz filed a motion requesting relief from judgment or,

alternatively, a new trial.3 Ms. Diaz based this motion upon newly

discovered evidence that, in her opinion, proved Dr. Williams and

Dr. Bradshaw had perjured themselves while testifying at the trial.

Throughout their depositions and testimony at trial, Drs.

Williams and Bradshaw steadfastly maintained that, in January,
 

4Dr. Talmage's affidavit states, in relevant part:

Antibiotic, and more particularly Amikacin and

aminoglycoside, serum levels and the results thereof

could be obtained on Saturdays and Sundays in January,

1987, by any physician at Methodist Hospital. (Talmage

Aff. ¶ 2). 

 

5Appellees, Dr. Williams and Dr. Bradshaw, express a concern

that this court lacks appellate jurisdiction since Appellant's

Rule 59 and 60(b)(3) motions were filed before final judgment was

entered. We find that this court has jurisdiction and direct

Appellees to Greater Houston Chapter of the Am. Civil Liberties

Union v. Eckels, 755 F.2d 426, 427 (5th Cir.), cert. denied, 474

U.S. 980, 106 S.Ct. 383, 88 L.Ed.2d 336 (1985), which resolves

4

1987, it was impossible to procure laboratory testing for

aminoglycoside blood serum levels between Friday evening and Monday

morning. Appellant's case turned on whether Appellees' failure to

perform weekend monitoring of her blood serum levels was negligent

conduct and the proximate cause of her hearing loss. However,

Appellant was unable to produce any evidence at trial which

contradicted the testimony of Drs. Williams and Bradshaw.

After the jury entered its verdict, Appellant obtained an

affidavit from Dr. Edward Talmage. Dr. Talmage stated that, on the

dates Appellant was hospitalized, it was possible to order weekend

aminoglycoside blood serum testing at Methodist Hospital.4

Appellant asserts that Dr. Talmage's affidavit amounts to

proof that Drs. Williams and Bradshaw perjured themselves at trial.

She maintains that the affidavit is new evidence that demands

relief from judgment or, alternatively, a new trial.

The trial court disagreed. On November 19, 1993, the trial

court denied Appellant's motion and entered a final judgment

reflecting the jury verdict.5
this question. 

5

DISCUSSION

A. MOTION FOR NEW TRIAL

Appellant contends that the trial court committed reversible

error when it ignored her "newly discovered evidence," namely Dr.

Talmage's affidavit, and denied her motion for a new trial.

Pursuant to Rule 59 of the Federal Rules of Civil Procedure, the

district court has discretion to grant a new trial on this ground.

Johnston v. Lucas, 786 F.2d 1254, 1257 (5th Cir.1986). Before we

will disturb the trial court's ruling, however, we must find a

clear abuse of discretion. Osburn v. Anchor Laboratories, Inc.,

825 F.2d 908, 917 (5th Cir.), cert. denied, 485 U.S. 1009, 108

S.Ct. 1476, 99 L.Ed.2d 705 (1988); Johnston, 786 F.2d at 1257;

LaFever, Inc. v. All-Star Ins. Corp., 571 F.2d 1367, 1368 (5th

Cir.1978). As this court noted in Brun-Jacobo v. Pan Am. World

Airways, Inc., 847 F.2d 242, 244 (5th Cir.1988):

When the district court denies a motion for new trial,

appellate review is especially deferential because in that

instance deference to the district court operates in harmony

with deference to the jury's determination of the weight of

the evidence and the constitutional allocation to the jury of

questions of fact.

 In deciding whether newly discovered evidence is sufficient

to warrant a new trial, the district court should consider whether

the evidence: (1) would probably have changed the outcome of the

trial; (2) could have been discovered earlier with due diligence;

and (3) is merely cumulative or impeaching. Osburn, 825 F.2d at

917; Johnston, 786 F.2d at 1257; LaFever, 571 F.2d at 1368. The
 

6It is important to distinguish this type of impeachment

evidence from evidence of a more compelling nature. If Appellant

had presented the district court with documentation (hospital

records or the like) conclusively establishing that Methodist

Hospital routinely conducted weekend aminoglycoside blood serum

tests in January, 1987, this element of the test could weigh in

favor of granting a new trial. Appellant would still, however,

have the burden of proving that (1) even with diligent pre-trial

discovery the evidence was unavailable; and (2) that the

evidence would probably have changed the outcome of the case. 

6

burden is on Appellant to demonstrate that the new evidence clearly

weighs in favor of a new trial.

We are unconvinced that Dr. Talmage's affidavit meets any of

the requirements listed above.

Dr. Talmage's affidavit, at best, impeaches Drs. Williams' and

Bradshaw's testimony that an aminoglycoside blood serum test could

not be performed over the weekend. Assuming arguendo that this

case is retried and Dr. Talmage is allowed to testify, there is no

guarantee that the jury will accept his testimony and reject the

testimony of Drs. Williams and Bradshaw. Given the state of the

evidence, the question of whether aminoglycoside blood serum levels

could be tested on a weekend would be a matter for the jury to

resolve from its perception of witness credibility.6

Appellant is also unable to make a showing that, even with due

diligence on her part, Dr. Talmage's testimony would have been

unavailable prior to trial. The record indicates that the parties

conducted discovery for over five years and took the depositions of

numerous expert witness. Appellant maintains that she was not

alerted to the possibility that Drs. Williams and Bradshaw were

lying until after the trial was concluded. She further indicates
 

7This is especially true since Appellant fails to specify

the foundation supporting Dr. Talmage's affidavit. Examination

of Dr. Talmage's curriculum vitae reveals that he has never been

7

that she had no reason to question the veracity of the statements

these doctors gave at deposition and that she accepted their story

as true. While cognizant of Appellant's trusting nature, we

believe a prudent litigant would independently investigate such a

pivotal issue and be less than willing to adopt blindly the

statements of the opposing party. Appellant is unable to

demonstrate that, had she vigorously pursued this avenue of

discovery prior to trial, she would have failed to uncover evidence

similar to the statements contained in Dr. Talmage's affidavit. We

are unconvinced that Dr. Talmage's affidavit is the type of "new

evidence" that a truly diligent litigant would be powerless to

unearth given five years of discovery.

Furthermore, Appellant failed to demonstrate that Dr.

Talmage's testimony would probably change the outcome of this case.

This was a complicated case requiring nearly two weeks of trial and

numerous expert witnesses. Several experts testified that the

medical treatment administered by Drs. Williams and Bradshaw was

appropriate under the circumstances. The trial judge was afforded

the opportunity to gage the credibility of these witnesses, a

luxury this court does not enjoy. We decline Appellant's

invitation to second-guess the trial court. Accordingly, we are

unconvinced that the district court abused its discretion when it

determined that Dr. Talmage's testimony was not such as would

probably change the outcome of this trial.7
on the staff of Methodist Hospital and the affidavit does not

indicate whether he, or someone he knows, ever ordered an

aminoglycoside blood serum test from Methodist Hospital on or

before January 5, 1987. 

8

B. MOTION FOR RELIEF FROM JUDGMENT

Appellant also asserts that the trial court erred by not

granting her Rule 60(b)(3) motion for relief from judgment. She

reasons that the statements made at trial by Drs. Williams and

Bradshaw amount to perjury, making relief under Rule 60(b)(3)

appropriate.

"A rule 60(b)(3) assertion must be proved by clear and

convincing evidence, and the conduct complained of must be such as

to prevent the losing party from fully and fairly presenting its

case." Longden v. Sunderman, 979 F.2d 1095, 1103 (5th Cir.1992),

citing Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th

Cir.1978). The purpose of the rule is to afford parties relief

from judgments which are unfairly obtained, not those which may be

factually incorrect. Johnson v. Offshore Exploration, Inc., 845

F.2d 1347, 1359 (5th Cir.), cert. denied, 488 U.S. 968, 109 S.Ct.

497, 102 L.Ed.2d 533 (1988).

The decision to relieve a party from final judgment is within

the sound discretion of the trial court. Montgomery v. Hall, 592

F.2d 278, 279 (5th Cir.1979). We will disturb the district court's

decision only for an abuse of discretion. Johnson, 845 F.2d at

1359; Montgomery, 592 F.2d at 279.

Appellant contends that the deposition and trial testimony of

Drs. Williams and Bradshaw, on the issue of whether an
 

8Dr. Ory's affidavit states, in relevant part:

In January, 1987, The Methodist Hospital had not yet

decided to offer physicians routine testing of serum

aminoglycoside levels. The Infectious Disease Research

Laboratory had agreed to do a pilot trial of performing

aminoglycoside level testing. This testing was

performed once a day by research technicians in the

Infectious Disease Research Laboratory on a Monday

through Friday basis. Serum samples were delivered to

the Infectious Disease Laboratory around noon each day

and assays were performed in a batch. Aminoglycoside

level determinations could not be done on either a

routine or emergency basis after 5 p.m. on weekdays or

on weekends.

(Ory Aff. ¶ 2). 

9

aminoglycoside blood serum test could be run on a weekend, amounted

to perjury. Appellant asserts that Rule 60(b)(3) is in place to

ensure that a party can reap no reward for engaging in fraudulent

conduct. We agree with Appellant's general statement, but we must

examine the record to determine if it is to be applied here.

If unequivocal evidence establishes that a party willfully

perjured himself, and thereby prevented the opposition from fully

and fairly presenting its case, use of Rule 60(b)(3) to grant the

innocent party a new trial would be a proper response. This,

however, is not such a case.

 Drs. Williams and Bradshaw testified that it was impossible

to monitor aminoglycoside blood serum levels on the weekends. In

addition, Dr. Edwin M. Ory, Co-Director of the Infectious Diseases

Research Laboratory at Methodist Hospital, submitted an affidavit

which unequivocally states that weekend lab testing for

aminoglycoside blood serum levels was unavailable at Methodist

Hospital in January, 1987.8
10

Dr. Talmage's affidavit squarely contradicts the assertions of

Drs. Ory, Williams and Bradshaw. Dr. Talmage claims that his

affidavit is based on personal knowledge. There is no indication,

however, as to how Dr. Talmage acquired this personal knowledge.

According to his own curriculum vitae, Dr. Talmage has never worked

in the Methodist Hospital, nor is he a member of its staff. At

most, Dr. Talmage's affidavit creates a factual dispute over

whether the Methodist Hospital's Infectious Diseases Research

Laboratory was capable of performing aminoglycoside blood serum

testing on weekends in January, 1987. Appellant's new evidence

does not conclusively establish that Drs. Bradshaw and Williams

intentionally perjured themselves. As we noted above, Rule

60(b)(3) is not intended to correct those outcomes which may be

factually incorrect, but rather to protect against a party

prevailing by unfair means. Johnson, 845 F.2d 1347.

Even if we accept as true Appellant's assertions of perjury,

we would only set aside the decision of the trial court if we found

that Appellee's actions foreclosed the possibility that Appellant

could "fully and fairly present her case." Longden, 979 F.2d at

1103. In the case at hand, Appellant had independent access to

information concerning the availability of aminoglycoside testing

in January, 1987. Dr. Talmage's affidavit proves that this

information was not under the exclusive control of the Appellees.

It is likely that a more focused effort by Appellant could have

uncovered this evidence prior to trial. When a party is capable of

fully and fairly presenting her case notwithstanding "fraud,
11

misrepresentation, or other misconduct," the trial court does not

err when it denies a Rule 60(b)(3) motion. See Rozier v. Ford

Motor Co., 573 F.2d 1332 (5th Cir.1978) (finding abuse of

discretion where the alleged fraud concerned information within the

exclusive purview of wrongdoer).

As we noted above, Rule 60(b)(3) is not intended to correct

those outcomes which may be factually incorrect, but rather to

protect against a party prevailing by unfair means. Johnson, 845

F.2d 1347. Appellant has failed to produce clear and convincing

evidence in support of her very serious charge of perjury and

likewise fails to demonstrate that any perjured testimony prevented

her from fully and fairly presenting her case. Accordingly, we

find that the trial court did not abuse its discretion when it

refused to grant her motion for relief from judgment.

C. SANCTIONS

Drs. Frommer and Rivera have asked the court for sanctions

for a frivolous appeal. Fed.R.App.P. 38. We find it indeed

puzzling that Dr. Rivera filed a brief and sought sanctions in this

court because he was not cast in judgment. It was therefore

unnecessary for his attorney to file any briefs in this court and

to attend oral argument. His motion for sanctions is denied based

upon this fact which was conceded at oral argument. Dr. Frommer's

motion presents slightly different facts. He was cast in judgment,

but Appellant failed to raise any issue with respect to him in her

brief to this court. Rather than file briefs and attend oral

argument, Dr. Frommer would have been well-advised to simply file
12

a motion to dismiss once it became apparent that he was not

included in the appeal. We therefore find that the sanctions

sought by Dr. Frommer in defense of Diaz's appeal would be

inappropriate, and are denied.

Drs. Bradshaw and Williams also seek Rule 38 sanctions. This

court has noted that a frivolous appeal is one in which "the result

is obvious or the arguments of error are wholly without merit."

Buck v. United States, 967 F.2d 1060, 1062 (5th Cir.), cert.

denied, --- U.S. ----, 113 S.Ct. 1052, 122 L.Ed.2d 360 (1993)

(quoting Montgomery v. United States, 933 F.2d 348, 350 (5th

Cir.1991)). While we are not surprised that counsel for Drs.

Bradshaw and Williams contend that Ms. Diaz's appeal is "wholly

without merit," we find that Appellant's appeal is not so tenuous

and unrealistic to warrant this court to award Rule 38 sanctions,

and they are denied.

CONCLUSION

In sum, we hold that a loosely substantiated post-trial charge

of perjury is insufficient to form the basis of either a motion for

new trial or a motion for relief from judgment. Accordingly, we

AFFIRM the decision of the trial court.