United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1558

___________ John Hall and Linda Hall, * * Appellees, * * v. * * James Arthur, M.D., and Allan C. * Gocio, M.D., * * Appellants, and * * Hot Springs Neurosurgery Clinic, * P.A., and St. Joseph's Regional * Health Center, Inc., * * Defendants. * Appeals from the United States District Court for the Western District of Arkansas.

___________ No. 97-1628

___________ John Hall and Linda Hall, * * Appellees, * *The Honorable Howard F. Sachs, United States District Judge for the Western 1 District of Missouri, sitting by designation. -2- v. * * James Arthur, M.D.; Allan C. * Gocio, M.D.; and Hot Springs * Neurosurgery Clinic, P.A., * * Defendants, and * * St. Joseph's Regional Health * Center, Inc., * * Appellant. *

___________ Submitted: January 15, 1998 Filed: April 6, 1998

___________ Before RICHARD S. ARNOLD, Chief Judge, MORRIS SHEPPARD ARNOLD , Circuit Judge, and SACHS, District Judge. 1

___________ MORRIS SHEPPARD ARNOLD, Circuit Judge. Dr. James Arthur is a neurosurgeon at St. Joseph's Regional Health Center in Hot Springs, Arkansas. One type of surgery that Dr. Arthur performs is called an anterior cervical diskectomy and fusion surgery ("ACF surgery"). To perform such a procedure, a surgeon removes damaged disk material from a patient's spine and usually replaces itwith anot her object. The goal is for the patient's body to form new bone tissu e around the object a

nd the vertebrae between which it has been placed, thus fusing the vertebrae together.-3-

T he choice of the replacement object is the focus of this litigation. Early ACF procedures u sed a piece of the patient's own bone from another part of the patient' s body , usually the hip. Later, surgeons started to use bone donated by others to so

called bone banks. The evidence at trial showed that each of these procedures ha s certain risks associated with it: Using the patient's own bone requires two surgerie s rather than one, increasing the risk of infection; using donor bone exposes the patient to the risk that disease will be transmitted from the donor to the patient. Perhaps partly in an effort to reduce

these risks, Dr. Arthur began using a third replacement object, a ceramic material called Orthoblock.
The evidence at trial revealed that after Dr. Arthur performed an ACF surgery on John Hall, Mr. Hall continued to have di fficulties with his back; approximately four months lat er, Dr. Edward Saer of Little Rock performed a repeat ACF surgery o n Mr. Hall to replace the Orthoblo ck with bone taken from Mr. Hall's hip. Mr. Hall and his wife, Linda Hall, now residents of New Mexico, brought this diversity actio n against Dr. Arthur, Dr. Allan C. Gocio (who assisted in Mr. Hall's surgery) , St. Joseph's Hospital, where the surgery took place, and Calcitek, the manufacturer of Orthoblock. The Halls laid claims against the defendants for medical negligence, battery, fraud , outrage, products liability, and breach of warranty. Although the Halls settled with Calcitek, the remaining defendants wer e involved in a three-week jury trial. The jury found Dr. Arthur, Dr. Gocio, and the hospital liable for negligence and awarded Mr. Ha ll compensatory damages in the amount of $9,900. The defendants appeal; we affirm the judgment of the trial court.

I. Dr

. Gocio asserts that the trial court erred in submitting the negligence clai m against hi m because there was insufficient evidence that he violated the relevan t standardof care. Arkansas law, applicable here, requires that the violation of th e standard of care in a medical malpractice case m ust be established by expert testimony-4-

when the asserte d negligence does not lie within the jury's comprehension as a matter of common knowledge. See Reagan v. City of Pigg ott , 805 S.W.2d 636, 637-38 (Ark. 1991); see also Ark. Code Ann. § 16-114-206(a)(2).
There app ears to be no dispute that there was evidence produced at tria l sufficient to convince a reasonable fact finder that Dr. Arthur, by using Orthoblock for Mr. Hall's ACF surgery, violated the applicable standard of care. Dr. Gocio argues , however, that since he acted only as an assis tant in Mr. Hall's surgery, the Halls had to produce expert

testimony as to the standard of care applicable to an assistant in order to allow the jury to reach the question of his potential negligence. We disagree.

Dr. Gocio, like Dr. Arthur, is a neurosurgeon. His involvement in Mr. Hall' s surgery was as a neurosurgeon, to help Dr. Arthur insert the Orthoblock in questio n int o Mr. Hall's back. If the expert testimony tended to show that Dr. Arthur' s placement o f Orthoblock in Mr. Hall violated the relevant standard of care for a neurosur geonperforming an ACF surgery, a jury could reasonably conclude that Dr. G ocio, by helping Dr. Arthur to insert the Orthoblock, similarly violated th e standar dof care for a neurosurgeon performing an ACF surgery. Accordingly, w e rejec t Dr. Gocio's assertion that there was insufficient evidence that he violated th e applicable standard of care. St. Joseph's Regional H ealth Center urges us to hold that the trial court erred in denying St. Joseph's motion for judgment as a matter of law. The Halls' case against the hospital relied primarily on the actions of Gail Sanders, a nurse at St. Joseph's

. Various expert witnesses criticized Ms. Sanders for failing to seek administrativ e review of her decision to order Orthob lock for Dr. Arthur's use in ACF surgeries. The hospital does not dispute the finding of negligence by the jury; instead, it asserts that the Halls produced insuffi cient evidence from which a reasonable jury could conclude that Ms. Sanders's negligence proximately caused harm to Mr. Hall. We disagree.-5-

The hospital's argument appears to be that the Halls cannot recover against the hospital unless they produced evidence as to what would have happened ha d Ms. Sanders no t been negligent. We do not believe that specific evidence of what the hospi tal would have done under different circumstances is necessary here. Certai n proof of a counterfactual situation is, of course, extraordinarily difficult to produce

. Instead, we believe that the fact finder can make a logical inference, based upon it s experience and the evidence that was produced at trial, that Ms. Sanders's negligence was a contributing cause to Mr. Hall's injury. Quoting W. Keeton, D. Dobbs, R. Keeton, and D. Owen, Prosser and Keeto n on the Law of Torts § 41, at 270 (W. Keeton ed., 5th ed. 1984), we noted in Larabee
v. MM&L International Corp. , 896 F.2d 1112, 1116 (8th Cir. 1990), that " '[w]hen a child is drowned in a swimming pool, no one can say with certainty that a lifeguar d would have saved the child; but the experience of the community p ermits the conclusion that the a bsence of a guard played a significant part in the drowning.' " While w e cannot say with certainty that Mr. Hall wou ld not have been injured if Ms. Sanders had not been negligent, we believe that the jury could reasonably have concluded that her neglig ence played a significant part in allowing Mr. Hall to be injured by the use o f Orthoblockfo r his ACF surgery. All that one has to assume here is that the hospita l would have not allowed the surgery to take place, and we do not regard this assumption as requiring a leap of faith.

II. All of the defendants argue that the trial court erred by re fusing to grant a mistrial when the Halls' counsel provided a 1992 Orthoblock package insert to the jury. Th e 1989 package insert, which was apparently applicable to the Orthoblock that was used
onMr. Hall and that was in evidence at the trial, states that Orthoblock should not be used "in any position where the implants are likely tosustain significant tensile, flexural
or other shear forces during function." Whether or not one might view that caveat as contraindicati ng the use of Orthoblock in the spine, Calcitek made clear its opposition-6-

to the use of Orthoblock in the spine in the 1992 insert, stating there that "Orthoblocks are not designed for use in spinal applications." By a ruling in limine , the trial court exclud ed the 1992 package insert under Fed. R. E vid. 407 as a subsequent remedial measure. Mr. Hall's surgery took place i n Decembe r, 1991, the trial court reasoned, so any warning on an Orthoblock packag e insert a fter that time would not be relevant in determining whether Dr. Arthur an d Dr. Gocio acted properly in selecting Orthoblock for use in Mr. Hall's spine.
There is no doubt t

hat the display of the 1992 insert to the jury was more than a little unfortunate. Yet, as we have recognized befo re, inadvertent difficulties frequently arise at trial, and cautionary instructions are generally sufficient to alleviate mistake s occurring d uring trial. See United States v. Davidson , 122 F.3d 531, 538 (8th Cir

. 1997), cert. denied , 118 S. Ct. 639 (1997), 1998 WL 74095 (1998). Furthermore, the trial cou rt is in a better position than we are to evaluate the impact of these kinds o f mistakes. The record shows that the trial court considered the impact of the display of the 1992 package insert and concluded that a cautionary instruction would be sufficient to cure a ny prejudice that the display created. The instruction that the trial court gave clearly directed the jury to disregard the 1992 package insert, and carefully explained that the insert was irrelevant because it was prepared after Mr. Hall's surgery. Under these c ircumstances, we do not believe that publishing the 1992 package insert prejudiced the defendants.

III. All of the defendants also appeal from three evidentiary rulings of the trial court. As a pre liminary matter, we note that reversal of the trial court's judgment will b e warranted only if the trial court committed an error that is not harmless, and an erro r willbe considered harmless unless it affects a substantial right of the objecting party. Cran e v. Crest Tankers, Inc. , 47 F.3d 292, 296 (8th Cir. 1995); see also 28 U.S.C

. § 2111. As we have said in the criminal context, we will find that a substantial right-7-

is affected by a trial court's erroneous evidentiary ruling only if we believe it likely that the jury was "subst antially swayed" by the result of that error. United States v. Blake , 107 F.3d 651, 653 (8th Cir. 1997). We believe that this formulation should guide our analysis in the civil context as well. The defendants complain that the t rial court improperly admitted testimony from patients ot her than Mr. Hall concerning what Dr. Arthur told them about Orthobloc k priorto surgery. We believe, however, that that evidence was properly admitted t o unde rmineDr. Arthur's deposition testimony that all of his patients knew that Ort hoblock

was not designed for use in an ACF surgery or approved by the FDA fo r that purpose, and his testimony that he told all of his patients that Orthoblock coul d frac ture and migrate after it was in place. While the defendants objected to th e introd uctionof the deposition evidence on relevance grounds, we believe that it wa s properly a dmitted under Fed. R. Evid. 406 as evidence of the routine practice of a n organizatio n. The other patients testified that Dr. Arthur did not inform them of many of the risks associated with Orthoblock or that i t was not intended for the purpose of an ACF surgery and did not have FDA approval. Such testimony, we believe, is plainly admissible under Fed. R. Evid. 401 as tending to shed light on the issue of Mr. Hall's informed consent to the procedure that he underwent.
The defendants do, however, in our view, raise a legitimate objection to the trial court's exclusion of testimony by Lawan Bledsoe, who, according to an offer of proof, would have test

ified that, in the course of her routine work as a nurse practitioner, she woul dhave talked with each of the patients who testified. According to the offer o f proo f, Ms. Bledsoe would also have testified that she regularly asked patients if the y understood the risks, and, if a patie nt indicated that Dr. Arthur had not explained them, she routinely referred the patient to Dr. Arthur for a relevant discussion. Since thi s testimony went to the question of Dr. Arthur's rout ine practices, the very matter that the Halls put in issue, we believe that the trial court erred in excluding Ms. Bledsoe' s testimony.-8-

The tr ial court's grounds for excluding that testimony derive from difficultie s enco unteredearlier. The trial court apparently believed that the testimony of th e patients was admissible only for the purpose of impeaching Dr. Arthur, rather than to undermine Dr. Arthur's testimony conc erning his routine practices. The trial court then determ inedthat Ms. Bledsoe's testimony was intended to impeach the patients ' credibility, and concluded t hat such an attack on credibility was collateral to the issues attrial. We believe, however, that Fed. R. Evid. 608(a) is not apposite here, because Dr. Arthur's credibility was not in issue.

A d etermination that barring Ms. Bledsoe's testimony was erroneous does not , of cours e, necessitate a reversal. As we have already indicated, we will disturb th e judgment only if w e believe that it is likely that the jury would have been substantially swayed by the wrongly excluded test imony if it had been admitted. On this record, we cannot conclude that it would have been. The testimony was cumulative to Dr. Arthur's,
an d, because the defendants did not make their offer of proof in the form of questions and answers, we find it difficult to gauge what effect the excluded testimony would have had, especially since Ms. Bledsoe was not cross-examined . We therefore conclude that the def endants have failed to make a case that the exclusion of this evidence wa s reversible error, even though, as we have said, it was error to exclude it. The defendants maintain finally that the trial court erred by restricting the expert testimony of Dr. Howard Senter. Dr. Senter was one of the first users of Orthoblock for an ACF surgery, and there was evidence th at his article on the subject in the journal Neurosurgery was one of the bases on which Dr. Arthur and Dr. Gocio decided t o undertake the

use of Orthoblock in an ACF surgery. At trial, according to the offer of proof, Dr . Senter would have testified with respect to the long-term results of AC F surgery patients with Orthoblo ck implants. Dr. Senter would have testified, moreover, that he had films of some of these additional patients showing that cracks or fractures similar to Mr. Hall's would eventually fuse without harm to the patient.-9-

The tria l court excluded all evidence that Dr. Senter would have provided tha t was generated after April, 1992, on the ground that the doctors performing Mr. Hall's ori ginalACF surgery would not have been able to base their judgments on scientifi c information gathered thereafter. This ruling was correct insofar as the standard of care is concerned: Whether Dr. Arthur vio lated the standard of care in December, 1991, by performing an ACF surgery on Mr. Hall would be determined properly by examinin g the information that Dr. Arthur had or should have had available to him at that time. The trial court's ruling to restrict Dr. Se nter's testimony was erroneous, however, insofar as that testimony bears upon the question of causation. The basic elements of
a cause of action for negligence are duty, breach, causation, and damages. To b e successf ul, a plaintiff must prove each of these elements. Whether the use o f Orthoblock as an implant caused Mr. Hall's subsequent difficulties should be determined by the best information available at the time of trial. Even if Orthoblock was thought to cause problems in 1991, and Dr. Arthur was thus in breach of the standard of care by selecting i t, the Halls cannot succeed on their medical negligence cause of action if the present state of scientific knowledge shows that Orthoblock did not cause any of the difficulties that Mr. Hall suffered.
While we conclude, then, that the trial court erred in restricting Dr. Senter' s testimony, we must again determine whether the error is a reversible one. The exclusion of cumulative evidence, of course, is merely harmless error. See Porchia v. Desig n Equipment Co ., 113 F.3d 877, 881 (8th Cir. 1997). Although Dr. Se nter was prohibited from testifying as to the long-term results of his ACF Orthoblock patients after April, 1992, h e did produce evidence regarding the long-term results of patients prior to that time. The relevant offer of proof, moreover , does not indicate how many more patients Dr. Senter w ould have testified about, nor does the offer of proof indicate ho w testimony concerni ng those patients would have been more helpful to the defense than the testimony co ncerning the patients about whom Dr. Senter was permitted to testify. An offer of proof in a question-and-answer form might have yielded this-10-

informa tion, but in the present record we are unable to divine it. Thus, we cannot say that we believe on this record that it is likely that the j ury would have been substantially swayed by the excluded evidence.

IV. For the foregoing reasons, we affirm the judgment of the trial court. A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.