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* This order and judgment is not binding precedent, except under the doctrines of 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 estoppel. 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

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Dr. Raoul Joubran and Gastroenterology 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 year, Poche sought treatment 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 the hospital the evening of the ERCP, but returned the 

next morning with severe abdominal pain. Joubran examined Poche two days after the 

ERCP surgery, and contacted a surgeon who examined Poche the following day. The 

surgeon diagnosed Poche with a perforation of the duodenum that required emergency 

surgery. Poche’s condition continued to deteriorate, 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 examine the upper digestive tract. 

2

 An ERCP involves inserting a scope into the duodenum via the esophagus. A 

small catheter is then inserted into the common bile duct. 

3

 A sphincterotomy is the cutting of a sphincter muscle. 

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additional surgeries to try to stabilize his condition. After several weeks, Poche was 

transferred to Bethesda Naval Hospital, where he endured more than two dozen 

additional surgeries and recovered for approximately four and 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 negligently breached their duties of care in their treatment of 

Poche. The United States successfully 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 March and April 2009. During voir dire, each 

side was provided with three peremptory challenges. 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 stated he was satisfied with the jury. 

 At trial, plaintiffs called a board-certified gastroenterologist to testify regarding 

the standard of care. They also elicited expert testimony from general surgeon Dr. David 

Livingston after the district court denied Joubran’s motion in limine seeking to preclude 

such testimony, and cross-examined two other medical experts retained by Joubran’s codefendants, Drs. Demarest and Mackersie. The jury ultimately returned a verdict in favor 

of the Poches against Joubran and one co-defendant. Joubran timely appealed. 

II 

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 Joubran requests a new trial, arguing that the district court erred in permitting 

Livingston to testify as an expert and by allowing the Poches to cross-examine medical 

experts retained by Joubran’s co-defendants regarding 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 evidence unless we have “a definite and firm conviction that the lower 

court made a clear error of judgment or exceeded the bounds of permissible choice in the 

circumstances.” McEwen v. City of Norman, 926 F.2d 1539, 1553-54 (10th Cir. 1991) 

(quotations omitted). Moreover, “if there is error in the admission or exclusion of 

evidence, we will set aside a jury verdict only if the error 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 assesses the admissibility of expert testimony 

using a two-step analysis: First, the court must determine if the expert is qualified by 

“knowledge, skill, experience, training, 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 

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F.3d at 969 (alternative citations omitted). 

A

 Joubran asserts that we should review the district court’s decision to admit the 

challenged expert testimony de novo because the 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 proper standard and actually performed its 

gatekeeper role in the first instance.” Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th 

Cir. 2003). There can be little doubt that the district court properly recognized its gatekeeping function. Before permitting 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 questions regarding Livingston’s experience diagnosing the 

need for ERCPs in patients presenting abdominal pain. Only after the court was satisfied 

that Livingston had the “experience . . . sufficient to form an opinion on these matters” 

was the testimony allowed. Similarly, when Joubran objected to the Poches’ crossexamination of Demarest regarding his procedure for diagnosing duodenum perforations, 

the court permitted only questions that “this doctor, particularly, has the expertise to 

answer.” Joubran did not object at the time 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 “performed its gatekeeper role in the first 

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instance,” id., we review its application of Daubert for abuse of discretion. 

B 

 In a civil action, state law controls whether a witness is competent to testify “with 

respect to an element of a claim or defense as to which State 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 establish 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-certified gastroenterologist to 

provide that testimony. Instead, Joubran claims 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 lacking board certification 

are not “competent to testify in any court of law” as to the proper standard of care. Tenn. 

Code § 29-26-115(b). The text of the Wyoming statute does not include a similar 

restriction on witness competency—it does not reference witness competency at all, but 

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simply states the elements of a malpractice action. 

Moreover, Wyoming case law belies Joubran’s interpretation. In Armstrong v. 

Hrabal, 87 P.3d 1226 (Wyo. 2004), plaintiffs sought to establish the standards of care for 

an emergency room physician by introducing testimony from a physician who was boardcertified in internal medicine and infectious disease. Id. at 1232-33. The trial court 

sustained an objection to preclude this testimony 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 expert 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 facts in issue.” Id. at 1237. 

Neither the text of the statute nor the interpretive Wyoming case law suggests the 

per se rule Joubran asserts here. Accordingly, the district court 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, Joubran claims that Livingston, Demarest, 

and Mackersie were not qualified to provide 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 experts applicable here through Rule 601. To 

the extent he advances such an argument, we note that Wyo. R. Evid. 702, like its federal 

Continued . . . 

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 The district court did not abuse its discretion in admitting Livingston’s testimony. 

Livingston rendered standard of care opinions regarding two issues: (1) when Joubran 

should have consulted a surgeon regarding Poche’s condition after Poche returned to the 

hospital; and (2) whether Joubran should have performed the ERCP and sphincterotomy 

without first performing non-invasive procedures 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 surgeon and chief of the trauma division at a 

tertiary care center, serves as the Wesley J. Hue Professor 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 year, including perforations, and 

his regular duties include diagnosing gastrointestinal perforations and determining 

whether to operate. As for his qualifications to testify regarding the second issue, 

Livingston testified he had extensive experience diagnosing abdominal pain, interpreting 

EGDs, and diagnosing whether ERCPs are necessary as part of his “day-to-day” work. 

 Joubran’s assertions that Livingston was not qualified to testify because he does 

not perform ERCPs are unavailing. Livingston did not testify about the standard of care 

in performing ERCPs, nor did he suggest that Joubran negligently conducted Poche’s 

ERCP. Livingston only testified as to the standard of care for deciding whether an ERCP 

 

counterpart, provides that a witness qualifies as an expert if she possesses the 

“knowledge, skill, experience, training, or education” to assist the trier of fact in 

understanding the evidence or determining a fact at issue. 

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is proper and when a surgical consult should be sought—matters in the overlapping areas 

of expertise of general surgery and gastroenterology.5

 

 Joubran similarly argues that the district court erred in permitting the Poches to 

question Joubran’s co-defendants’ experts with respect to the standard of care for 

diagnosing duodenum perforations. Like Livingston, however, these witnesses did not 

stray from their areas of expertise. Demarest was cross-examined regarding his 

experience diagnosing abdominal perforations. He is a board-certified general and 

critical care surgeon, who diagnoses and treates duodenum perforations as “part and 

parcel of [his] practice.” Specifically, Demarest 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, Mackersie is a board-certified general and 

critical care surgeon. Mackersie also testified that he was experienced in managing 

duodenum perforations following ERCPs. Because 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 was not critical of Joubran’s treatment, and 

Joubran agreed that Demarest’s testimony did not harm his case. 

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(quotation omitted). 

D 

 Joubran further contends that the district court violated the law of the case doctrine 

by admitting the testimony from Mackersie and Demarest after a magistrate judge denied 

the Poches’ motion to compel 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 stages in the same case.” Dobbs v. Anthem, 600 

F.3d 1275, 1279 (10th Cir. 2010). But “[o]nly final judgments may qualify as law of the 

case,” Unioil, Inc. v. Elledge (In re Unioil, Inc.), 962 F.2d 988, 993(10th Cir. 1992), and 

“district courts generally remain free to reconsider their earlier interlocutory 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 Joubran relies was issued in response to 

a motion filed by the Poches seeking sanctions and an additional deposition of Mackersie. 

The Poches filed this motion after counsel for a co-defendant instructed Mackersie not to 

answer questions at his deposition. Although the magistrate judge’s order discusses 

Mackersie’s qualifications to opine on gastroenterology issues, it did not purport to be the 

final order governing the question of admissibility; rather, the order addressed the scope 

of discovery. Because the order did not finally decide the issue of admissibility, the law 

of the case doctrine did not preclude the district court’s decision to permit Demarest and 

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Mackersie to testify.7 

III 

Joubran’s final argument is that he was denied a fair and impartial jury because he 

was not granted extra peremptory challenges, resulting in a jury biased against a 

defendant of Middle Eastern descent because two jurors shared Poche’s military 

background. Because Joubran did not object below, we review this claim for plain error. 

See Hidalgo v. Fagen, Inc., 206 F.3d 1013, 1020 (10th Cir. 2000). To establish plain 

error, Joubran must demonstrate “plain error that affected [his] substantial rights. The 

plain error exception in civil cases has been limited to errors which seriously affect the 

fairness, integrity or public reputation 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 peremptory challenges, but 

“[s]everal defendants . . . may be considered as a single party for the purposes of making 

challenges.” 28 U.S.C. § 1870. Joubran contends 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 peremptory challenges. Due process entitles a civil 

litigant to a fair trial, including 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 Demerest, and thus cannot govern the 

admissibility of his testimony. 

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ability to impartially consider the evidence presented at trial.” Id.

 Joubran has failed to present evidence demonstrating jurors were plainly biased 

such that they could not impartially consider the evidence at trial. The mere fact that two 

jurors had military backgrounds, as did Poche, does not suggest they were biased. 

Joubran points to an exchange that occurred while Poche was 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 know you will understand. Maybe you can 

help explain it.” An unidentified juror replied, “Subject matter expert.” Although 

unusual and perhaps even inappropriate, this 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 judicial proceedings.” 

Phillips, 244 F.3d at 802. 

IV

 For the forgoing reasons, we AFFIRM. 

Entered for the Court 

 Carlos F. Lucero 

 Circuit Judge 

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