## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 09-2010

___________ Rozanna Csiszer, Individually and as * Next Friend of Allison Csiszer, A * Minor; Charles Csiszer, Individually * and as Next Friend of Allison Csiszer, * A Minor, *
* Plaintiffs/Appellants, * * Appeal from the United States v. * District Court for the * Western District of Arkansas. Mary R. Wren, MD; Wren & Barrow * Obstetrics & Gynecology, PLLC, * doing business as The Center for * Women, *
* Defendants/Appellees, *
* Baxter County Regional Hospital, Inc., * doing business as Baxter County * Medical Center, *
* Defendant, *
* Continental Casualty Company, *
* Defendant/Appellee, *
* Perry Wilbur, MD; Perry Wilbur, MD, * PA, *
* Defendants. *1 The Honorable Robert T. Dawson, United States District Judge for the Western District of Arkansas.
-2- ___________ Submitted: April 13, 2010 Filed: August 6, 2010

___________ Before BYE, COLLOTON, and GRUENDER, Circuit Judges.

___________ COLLOTON, Circuit Judge.

Rozanna and Charles Csiszer sued the hospital and obstetrician that provided care to Rozanna during the bi rth of their daughter, Allis on Csiszer. The complaint alleged that negligent care during the deliv ery was the proximate cause of Allison’s cerebral palsy. The jury re turned a verdict for the defe ndants. The Csiszers appeal, arguing that the district court 1 committed several errors in its conduct of the trial. We affirm.

I.

Throughout Rozanna Csiszer’s pregnancy, she was treated by physicians, including Dr. Mary Wren, who were on st aff at Wren & Barrow Obstetrics and Gynecology, PLLC (also called the Center fo r Women). On the morning of February 24, 2006, Rozanna was examined during a pren atal visit by Dr. Eric Shultz, who noted decreased fetal movement and decreased amni otic fluid. Shultz immediately admitted Rozanna to Baxter Regional Medical Center to induce labor. Rozanna remained in the care of Dr. Shultz until approximately 7 p.m., at which time Dr. Wren assumed Rozanna’s care. Nurse Angie Padgett cam e on duty around this same time and also attended to Rozanna.-3- Dr. Shultz had begun the administration of Pitocin, a medication that stimulates uterine contractions, to Roza nna that morning. Dr. Wren continued the administration of Pitocin and increased the dosage several times between 7:00 p.m. and approximately 10:00 p.m. At approximately 12:30 a.m., Dr. Wren first broached the possibility of delivering the baby by Cesareansection. Although the Csiszers initially resisted the idea, when Dr. Wren agai n recommended a C-section at 1:22 a.m., because little progress had beenmade towards a vaginal delivery, the Csiszers agreed. Dr. Wren discontinued the administration of Pitocin, and Dr. Wren delivered Allison by C-section at 2:31 a.m. on February 25. Allison was later diagnosed with cerebral palsy.

The Csiszers filed suit in January 2008 against Dr. Wren, the Center for Women, and the Medical Center, alleging th at their negligence and the negligence of Nurse Padgett (who was not named as a defendant) proximately caused Allison’s condition. The Csiszers claimed that Wren and Padgett negligently administered the Pitocin, which resulted in the hyperstimul ation of Rozanna’s uterus, and deprived Allison’s brain of oxygen during the second stag e of labor. They further alleged that Dr. Wren should have ordered a Cesarean s ection and ceased administration of Pitocin sooner than she did. The Csiszers allege d that Baxter Regional Medical Center was vicariously liable for the acts of its employ ees and was independen tly liable for failing to provide adequate training and supervisi on to its medical personnel. The defendants responded that Allison’s injury occurred befo re the labor and delivery, and that Wren and Padgett did not act negligently.

The case proceeded to trial be fore a jury. On the fifth day of trial, a juror was dismissed by the court after hewaved to a woman whom he recognized in the gallery. On February 20, 2009, after nine days of trial, the jury unanimously found the defendants not liable for the damages claime d by the Csiszers. The Csiszers raise several alleged trial errors on appeal.-4- II.

A.

The Csiszers argue that the outcome of the trial was tainted by the influence of a provision of Arkansas law that was declared unconstitutional by the Supreme Court of Arkansas after the conclusion of this trial. The provision reads: “Any evidence of damages for the costs of any necessary medi cal care, treatment, or services received shall include only those costs actually paid by or on behalf of the plaintiff or which remain unpaid and for which the plainti ff or any third party shall be legally responsible.” Ark. Code Ann. § 16-55-212(b).

The district court denied the Csiszer s’ motion in limine urging the court to declare § 16-55-212(b) unconstitutional unde r the Arkansas constitution. A few months later, in Johnson v. Rockwell Automation, Inc. , 308 S.W.3d 135, 138 (Ark. 2009), the Supreme Court of Arkansas made th at declaration. The court held that § 16-55-212(b) was a rule of evidence, and thatthe state legislatur e encroached on the authority of the judicial branch, in viola tion of the State’s constitutional separation of powers, when it enacted the section. Id. at 142.

Because the jury did not find any of th e defendants liable for Allison’s cerebral palsy, it did not reach the question of damages. The Csiszers maintain that the statutory limitation on evidence relating to damages nonetheless affected the jury’s verdict, because of an assertion made by counsel for the Medical Center in final argument. Counsel stated:

What you heard . . . was that every single need she has has been met

. She has received every medical treatme nt she has needed, every therapy she has needed. And every piece of equipment she has needed has been provided to her. [Plaintiffs’ counsel] introduced that all of that for the last three years cost about $29,000. And all of the truth – all of the-5- evidence you have heard is she will continue to have every one of her needs met regardless of the outcome of this case for the rest of her life. So the only thing that has been raisedin that area that’s not met is that they need a $100,000 to $150,000 a year to hire someone to be in the home with them. And I want you to th ink about all of that because it, it goes into the credibility of the whole case.

The Csiszers argue that § 16-55-212(b) “set up” this argument, which implied to the jury that the Csiszers were acting dish onestly by making a bad faith request for damages. This implication, the argument goes, unfairly influenced the jury against the Csiszers and rendered the trial manifestly unfair.

The Csiszers first raised this argument in a motion for new trial, which was denied by the district court. We normally review the denial of a motion for new trial under the abuse of discretion standard, Vassar v. Solem , 763 F.2d 975, 979 (8th Cir. 1985), but the Csiszers neither objected duri ng the closing argument, nor moved for a mistrial. They sought no curative or re medial action before the case was submitted to the jury. Raising an objection for the first time in a post-verdict motion for new trial is not sufficient to preserve it. Because the Csiszers forfeited their objection, we review only for plain error. See Diesel Mach., Inc. v. B.R. Lee Indus., Inc. , 418 F.3d 820, 835 (8th Cir. 2005).

“Plain error is a stringently limited standard of review, especially in the civil context.” Id. (internal quotation omitted). To obtai n relief, a party must show that a clear or obvious error affected its substantial rights at trial. If those points are established, then we havediscretion to correct the error if the appellant also demonstrates that the error seriously a ffected the integrity, fairness, or public reputation of judicial proceedings. Rahn v. Hawkins , 464 F.3d 813, 819 (8th Cir. 2006). The Csiszers cannot make this showing.-6- In light of the Arkansas court’s decision in Johnson , the district court did err by limiting the presentation of evidence re lating to damages ba sed on § 16-55-212(b). And because we must consider the law at th e time of appeal when reviewing for plain
error, see Johnson v. United States , 520 U.S. 461, 468 (1997), the error is clear. But this error did not affect the Csiszers’ substantial rights. The jury heard a large volume of evidence over the course of this nine-d ay trial; the trial transcript is over 2000 pages long. We see no reas onable probability that the ju ry’s verdict on liability that the defendants were not neglig ent would have been differe nt but for statements made in closing argument that the Csiszers had not met their burden of proof on the amount of damages. To the contrary, the objecti onable portions of the argument, as well as any evidence presented concerning the fi nancial aspects of Allison’s care and treatment, were rendered irrelevant by the ju ry’s verdict in the defendants’ favor on liability. The Csiszers have not met their burden to show a pl ain error warranting relief.

B.

The Csiszers also challenge the district court’s denial of their motion in limine urging the court to declare invalid anothe r provision of Arkansas law. Section 16- 114-207 of the Arkansas Code, like § 16-55- 212(b), was enacted as part of the Arkansas Medical Malpractice Act. It provides:

In any action for medical injury[,] . . . [n]o medical care provider shall be required to give expert opinion testimony against himself or herself as to any of the matters set forth in § 16-114-206 at a trial. However, this shall not apply to discovery. Discovery information can be used at a trial as in other lawsuits.

Ark. Code Ann. § 16-114-207(3). Section 16-114-206, which is referenced in the challenged provision, sets forth the elements that a medical malpractice plaintiff must2 Section 16-114-206 states:

(a) In any action for medical injury, when the asserted negligence does not lie within the jury's comprehension as a matter of common knowledge, the plaintiff shall have the burden of proving: (1) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant, the degr ee of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or sp ecialty in the locality in which he or she practices or in a similar locality; (2) By means of expert testimony provide d only by a medical care provider of the same specialty as the defendant that the medical care provider failed to act in accordance with that standard; and (3) By means of expert testimony provided only by a qualified medical expert that as a proximate result thereof the injured person suffered injuries that would not otherwise have occurred.
-7- prove through expert testimony. 2The Csiszers characterize § 16-114-207(3) as a legislatively-created evidentiary privilege, and, citing Johnson v. Rockwell Automation , they argue that it violates the Arkansas separation-of-powers doctrine. They also make an equal protection claim, arguing that the provision violates their fundamental rights to a fair trial and to cross-examine witnesses.

We consider the equal protection claim first. The Csiszer s argue that because the statute burdens fundamental rights, we should apply strict scrutiny in our analysis of § 16-114-207(3), and require that the statute must further a compelling state interest in a way that is least restrictive of the Csiszers’ constitutional rights. See Jegley v. Picado , 80 S.W.3d 332, 350 (Ark. 2002) . We disagree, becausewe do not think the Supreme Court of Arkansas would concl ude that the statute burdens fundamental rights. In addressing an argument that § 16-114-207(3) violated the same rights that the Csiszers invoke here, the Arkansas court said that the provision “‘does not unduly-8- restrict the rights of malpractice plaintiffs ,’” because “‘it does not prevent the plaintiff from requiring the defendant to testify regard ing factual issues but only prevents him from requiring the defendant to give his expert opinion on matters such as the relevant standard of care and proximate cause.’” Whorton v. Dixon , 214 S.W.3d 225, 231 (Ark. 2005) (quoting Carson v. Maurer , 424 A.2d 825, 832-33 (N.H. 1980) (analyzing a similar statute)). Nor does the provision create a suspect classification that burdens a discrete and insular minority or some other group to which the Arkansas court is likely to afford special protections. See Am. Bank & Trust Co. v. Cmty. Hosp. , 683 P.2d 670, 677 & n.10 (Cal. 1984) (collecting cases rejecting the argument that legislation governing medical malprac tice suits creates an unconstitutional classification). When a challenged statute does not infringe upon a fundamental right or create a suspect class, an equal protection claim is subj ect to rational basis review. See Rose v. Ark. State Plant Bd. , 213 S.W.3d 607, 617 (Ark. 2005).

The Supreme Court of Arkansas alrea dy has held that § 16-114-207(3) survives rational basis review. Whorton , 214 S.W.3d at 230-31. The provision – like the entire Medical Malpractice Act of which it is a pa rt – is rationally related to achieving the Act’s stated purpose of “help[ing] control the spiraling cost of health care” by aiming for a reduction in the high malpractice pr emiums caused by widespread malpractice litigation. Id. at 230 (internal quotation omitted); see also Eady v. Lansford , 92 S.W.3d 57, 61-62 (Ark. 2002) (holding that a rational relationship exists between the legitimate government objective of controlling health care costs and the burden of proof requirements of § 16-114-206). Therefore, the Csiszers’ equal protection claim fails.

Whether the Supreme Court of Arkans as would conclude that § 16-114-207(3) violates the separation of powers is a more difficult question. The court declined to address this question in Whorton , 214 S.W.3d at 231, and we must predict how that court would rule on the issue. The Csiszers argue that the Supreme Court would-9- invalidate this provision on the same gr ounds on which it invalidated § 16-55-212(b) in Johnson

. In ruling the damages provision unconstitutional in Johnson , the Supreme Court of Arkansas described the provision as “c learly limit[ing] the evidence that may be introduced relating to the value of medi cal expenses.” 308 S.W.3d at 142. Because it is the province of the courts to dictate rules governing admissibility of evidence, the court ruled that the legislature’s promulgation of the provision violated the separation of powers. Id.

The scope of the decision in Johnson is uncertain, because the Arkansas court previously rejected a separation-of-powers challenge to a similar restriction in the Arkansas rape shield law. That statute precluded the introduction of any evidence relating to an alleged rape victim’s sexual history. Nonetheless, the court in Sera v. State , 17 S.W.3d 61 (Ark. 2000), did “not view the statute as having supplanted [its] rulemaking power and ability to control the courts.” Id. at 78.

The effect of § 16-114-207(3) is narrower than both the damages provision declared unconstitutional in Johnson and the rape shield statute at issue in Sera

. Unlike the prohibitions on all evidence relati ng to the value of medical expenses not borne by a plaintiff, or all evidence relating to an alleged victim’s sexual history, the restriction on expert testimony from a defe ndant does not bar evidence on an entire subject matter. Instead, it governs the manner in which a plaintiff can meet the burden of proof. A medical malpractice plainti ff must introduce expert testimony regarding the proper standard of care to satisfy his burden. Ark. Code Ann. § 16-114-206. Section 16-114-207(3) does not prevent the ju ry from hearing evidence relating to the standard of care or the defendant’s satisfaction of that standard. It simply restricts the possible sources for that evidence, by prohibiting the plaintiff from forcing the defendant to provide the testimony necessary to satisfy the plaintiff’s burden. See Whorton , 214 S.W.3d at 231. A malpractice plaintiff is free to present evidence on-10- the standard of care through other witnesses. Given the relatively narrow scope of § 16-114-207(3), as compared to the provisions considered in Johnson and Sera , we think it is more likely that the Supreme C ourt of Arkansas woul d reject a separationof-powers challenge to the statute.

Even if the district court erred in applying § 16-114-207(3), moreover, we conclude that any error was harmless. A malpractice defendant loses the protection of § 16-114-207(3) if she gives opinion testimony during trial. Whorton , 214 S.W.3d at 231. At the pretrial conference, the c ourt and attorneys for both sides discussed this aspect of the rule, and the record demons trates a clear understanding that if Dr. Wren testified on direct examination about the pr oper standard of care, then the Csiszers could explore that subject with her during cross-examination. The defense indicated its intention to ask standard-of-care questi ons of Dr. Wren, and acknowledged that the Csiszers would then “have every opportunity to cross examine her on that.” Counsel for the Csiszers responded that he would “w ait with bated breath” for the defense to call Dr. Wren and inqui re about the standard of care, and that if no such questions were raised, then counsel agreed to appr oach the bench and re iterate an objection to the application of § 16-114-207(3).

The defense did call Dr. Wren as a witness, and asked her the following questions:

• “When you were providing care to Allison – Mrs. Csiszer and her unborn child, Allison, did you provide the care that you had been trained to provide at University of Oklahoma Medical Center in Oklahoma City?” • “Did you provide the type of care th at you had provided for your patients both at Oklahoma City, in your practice in Kansas City, and up until that point in Mountain Home, Arkansas?”-11- • “Did you provide the best care and treatment you knew to give Miss Csiszer and her child?”

Dr. Wren answered each question. At th at point, the door was opened to further questioning about the standard of care, but counsel for the Csiszers declined to walk through it. The cross-examination included no questions about the standard of care, and no bench conference was requested. Because the Csis zers had an opportunity to cross-examine Dr. Wren on the standard of care, they cannot show that they were prejudiced by the application of § 16-114-207(3).

III.

The Csiszers next challenge the districtcourt’s ruling to prohibit Nurse Janine Eagon, an expert witness called by the plaintiffs, from offering opinion testimony concerning institutional negligence on the part of Baxter Regional Medical Center. A district court possesses br oad discretion in ruling on the admissibility of expert testimony, and we will reverse only if th e court has abused that discretion. Anderson v. Raymond Corp. , 340 F.3d 520, 523 (8th Cir. 2003).

The Csiszers sought to introduce tes timony from Nurse Eagon to support their allegations of negligence against Baxter Reg ional Medical Center. Her testimony was designed to fulfill the requirement of expe rt testimony set forth in § 16-114-206 of the Arkansas Code. Pursuant to Federal Rule of Civil Procedure 26(a)(2)(B), the Csiszers’ pretrial disclosures included a written report prepared by Nurse Eagon. In this report, Nurse Eagon stated her view that the care provided to Rozanna by Nurse Padgett had been substandard. The report further stated:

There was a failure to adhere to po licy by intervening on behalf of the patient and initiating the Chain of Command as necessary. Unfortunately, the Labor and Delivery “Fetal Monitoring Policy” is void of clear and concise direction in regards to the use of appropriate-12- terminology, documentation, and nursing responsibility during fetal monitoring. . . . It is my opinion that the Standard of Care was not met, and that Baxter Regional Medical Center’s Labor and Delivery Policy and Procedures, and Baxter Regional Me dical Center’s failure to provide a competent Labor and Delivery Nurse contributed to the unfortunate outcome of Allison Csiszer.

The defendants deposed Nurse Eagon seve ral weeks after she completed her written report. During he r deposition, Nurse Eagon retreated from her written criticisms of the hospital. Defense couns el asked her repeatedly if she had any criticisms of any of the hospital’s policies or procedures, and she repeatedly said that she did not. She stated several times thather only criticism was that Nurse Padgett should have intervened to discontinue the ad ministration of Pitocin. She declined to expand her criticisms even when counsel probed whether she ha d any other opinions relating to the care provided by the hospital that had not yet b een covered in the deposition.

Shortly before trial, the hospital filed a motion in limine to exclude evidence relating to allegations of negligence (other than a theory of respondeat superior) against Baxter Regional Medical Center. The hospital argued that the Csiszers had failed to meet the requirements of § 16-114-206, because neither Nurse Eagon nor another projected defense witness was prepar ed to offer opinions regarding the alleged independent negligence of the hospital. The district court granted the motion. On the third day of trial, the Csiszers requested that they be permitted to examine Nurse Eagon on the hospital’s negligence, but the district court adhered to its pretrial ruling and excluded her testimony on this issue.

The district court did not abuse its br oad discretion in ruling that Nurse Eagon could not provide qualified expert tes timony regarding negligence by the hospital. Although Eagon’s written report expressed th e view that the hospital had acted negligently, she retreated from that opinion in her deposition, and declined to express-13- any criticism of the institution, despite se veral opportunities to do so. The district court did not abuse its discretion by excl uding her testimony, because the record reflected that Nurse Eagon either had repudi ated the conclusions expressed in her written report, or at a minimum, had not de veloped her conclusions to the point where she could provide a qualified expert opinion at trial. Without expert testimony to support the allegation of negligence agains t the hospital, as required by § 16-114-206, the district court acted appropriately in excluding evidence relating to alleged institutional negligence.

IV. Finally, the Csiszers contend that the district court mishandled several aspects of jury selection and oversight. Their primary complaint is that the district court, by choosing to examine prospectiv e jurors itself, denied the parties an opportunity for effective voir dire. We reject this conten tion. “The conduct of voir dire is generally left to the trial court’s sound discretion.” Nicklasson v. Roper , 491 F.3d 830, 835 (8th Cir. 2007). Federal Rule of Civil Procedure 47(a) expressly permits a district court to conduct voir dire itself. The rule furthe r provides that “[i]f the court examines the jurors, it must permit the parties or their attorneys to make any further inquiry it considers proper, or must itself ask any of their additional questions it considers proper.” The district court complied withthe rule. Although the court denied the Csiszers’ request for attorney participati on in voir dire, it invited submissions from counsel regarding areas into which they wi shed the court to inquire. The court also invited each attorney to approach the be nch during voir dire to suggest additional areas of inquiry not covered by the court. The district court conducted voir dire in accordance with Rule 47 and within the bounds of its broad discretion.

The Csiszers also argue thatthe district court erred in denying their motion for a mistrial, after a member of the gallery (later identifie d as Dr. Wren’s niece) winked at Juror 29, and the juror waved back to her. During an in-chambers conference about-14- the interaction, the juror explained that he recognized the young woman, whom he had not seen for a couple of years, as an empl oyee of his former bank. In an abundance of caution, the court dismissed Juror 29. Th e court then informed the remaining jurors that Juror 29 had been excused – telling them that he had done nothing wrong, but declining to provide any further informati on about the reason for the dismissal – and the trial continued for several more days. There is no evidence that the dismissal of Juror 29 in the middle of this lengthy tr ial inappropriately affected the jury’s deliberations or verdict. The court did not abuse its discretion in denying the request for a mistrial.

For the same reasons, we hold that the di strict court did not err in denying the Csiszers’ request to interview jurors after the close of trial. The Csiszers argued that the circumstances prompting the dismissal of Juror 29 demons trated that outside influences were brought to bear on the jury, and they requested permission to interview the jurors in order to identify th e impact and extent of the alleged outside influences. The district court, citing th e jury’s obvious attentiveness during trial and its lengthy deliberation, found the Csiszers’ contentions to be without merit and denied the motion. Again, we see no evid ence of inappropriate influence on the jury. The district court’s considered judgment was sound.

* * *

The judgment of the district court is affirmed.

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