1 United States Court of Appeals,

Fifth Circuit.

No. 96-60484.

John M. GOLDMAN, Jr., a Minor, by & through his Mother and Next

Friend, Deborah Goldman; Deborah Goldman, Individually; John M.

Goldman, Sr., Plaintiffs-Appellants,

v.

Julius BOSCO, M.D., George Henneberger, M.D.; Women's Clinic,

Inc., Defendants-Appellees.

Aug. 27, 1997.

Appeal from the Uni ted States District Court for the Southern

District of Mississippi.

Before WISDOM, BENAVIDES and STEWART, Circuit Judges.

WISDOM, Circuit Judge:

This appe al involves a medical malpractice action brought

under Mississippi law. Because we find that the district court

erroneously instructed the jury regarding the sta ndard of care

applicable to the defendant physician's conduct, we re verse and

remand.

BACKGROUND

On November 7, 1989, the plaintiffs, John M. Goldman, Jr., a

minor, by and through his mother and next friend, Deborah Goldman,

Deborah Goldman individually, and John M. Goldman, Sr., filed this

medical malpractice action against Julius Bosco, M.D., George

Henneberger, M.D., the Women's Clinic, Inc., and the Singing River

Hospital and its Board of Trustees. Jurisdiction was based on

diversity of citizenship. The plaintiffs allege that the

defendants were negligent during Deborah Goldman's delivery of John1 See, Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82

L.Ed. 1188 (1938).

2 Goldman Jr. on November 4, 1975, causing irreversible brain damage

to the newborn child. The district court dismissed the claims

against the Singing River Hospital and its Board of Trustees. The

case proceeded to trial, and the jury returned a verdict for the

remaining defendants, finding specifically that neither Bosco,

Henneberger, nor the Women's Clinic was negligent in the care of

Deborah Goldman or John Goldman, Jr.

The plaintiffs moved for a new trial, arguing that the

district court erroneously instructed the jury regard ing the

applicable standard of care, asserting that t he district court

abused its discretion in making c ertain evidentiary rulings, and

urging the court for a new trial because of an improper comment by

defense counsel. The district court denied the motion. The

plaintiffs filed a timely notice of appeal.

DISCUSSION

The most significant issue in this appeal is whether, under

Mississippi law, a national standard of care or local standard of

care should be applied to the defendant physicians' 1975 conduct.

Initially, the district court, ru ling on a motion i n limine,

determined that a national standard of care applied. Later, the

district court reconsidered the issue and decided to apply the

local standard of care.

Because we si t in diversity, we must apply Mississippi law. 1

Generally, we review the district court's ruling on a motion for2 See, e.g., Marcel v. Placid Oil Co., 11 F.3d 563, 568 (5th

Cir.1994).

3 Munn v. Alg ee, 924 F.2d 568, 575 (5th Cir.1991); D ixon v.

International Harvester Co., 754 F.2d 573, 586 (5th Cir.1985); 1

S TEVEN A LAN C HILDRESS & M ARTHA S. D AVIS

, F EDERAL S TANDARDS OF R EVIEW § 5.08,

at 5-73 (2nd ed.1992).

4 466 So.2d 856 (Miss.1985).

5 Id. at 873.

3 new trial for an abuse of discretion, 2 but asserted legal errors

are reviewed de novo. 3

At trial, the district court instructed the jury to apply a

local standard of care to the defendant physicians' conduct:

In this case, when determining whether the plai ntiffs have

demonstrated by a preponderance of t he evidence that [the

defendants] were negligent

... you must determine whether the

degree of care and skill exercised by [the defendants] fell

below the level of care and skill which would have been

exercised by a minimally competent, reasonably prudent

obstetrician under the same or similar circumstances

practicing in the Pascagoula, Mississippi, medical community

in 1975.

The plaintiff argues that the district court erred as a matter

of law because under Mississippi law a national standard of care

should have been applied to the defendant physicians' conduct. In

1985, in Hall v. Hilbun, 4 the Mississippi Supreme Court abandoned

the local sta ndard of care and adopted a resource-based national

standard of care, which is as follows:

[T]he physician's non-delegable duty of care is this: given

the circumstances of each patient, each physician has a duty

to use his or her knowledge and therewith treat through

maximum reasonable medical recovery, each patient, with such

reasonable diligence, skill, competence, and prudence as are

pra cticed by minimally competent physicians in the same

specialty or general field of practice throughout the United

States, who have available to th em the same general

facilities, services, equipment, and options. 56 Id. at 874-75.

7 Id. at 876.

8 Id.

4 The Hall decision adopted both a new standard of care for

physicians and a new evidentiary rule regarding who may qualify as

an expert witness. Hall makes clear that a medical expert may be

qualified without knowledge of the particular community, as long as

the expert is familiar with the facilities, resources, services and

options available. 6

The court then addressed whether its decision would apply

r etroactively. The court recognized the general rule that

"judicial decisions ordinarily apply retroactively", 7 and noted

t hat other states had abolished locality rule by simply adopt ing

the national standard of care and applying it retroactively "in a

normal fashion without fanfare". 8 The H all court, however,

carefully considered the retroactivity issue.

The retroactivity question with regard to the evidentiary

rule—who may qualify as an expert witness—is easy.... [The

evidentiary rule] should be applied in the trial of this case

on remand[,]

... in any case in which an appeal is pending[,]

... [and] to all cases tried after this date.

The retroactivity vel non of the rule regarding the

physician's duty of care is arguably more difficult.

Injustice would necessarily attend our passing judgment on the

conduct of a citizen by reference to substantive rules

substantially different from those in effect and relied upon

by the citizen at the time of his conduct. We recognize that

"the confidence of people in their ability to predict the

legal consequences of their actions is vitally necessary to

facilitate the planning of primary activity".

These fundamental premises have more validity in

contracts, property or other busi ness or economic contexts

than in tort cases. Still if it could be demonstrated that at9 The Hall court looked to the Supreme Court's retroactivity

analysis in Chevron Oil v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30

L.Ed. 2 d 296 (1971). In C hevron, the Court held that, as a

threshold matter, "the decision to be applied nonretroactively must

establish a new principle of law

... by deciding an issue of first

impression wh ose resolution was not clearly foreshadowed". The

Hall court gleaned from Chevron that such "foreshadowing removes [the] potential for injustice". Hall, 466 So.2d at 877.

10 424 So.2d 547 (Miss.1983). K ing extended and expanded the

locality rule. The Mississippi Supreme Court considered K ing

"clear foreshadowing" of the Hall decision, removing the potential

for injustice to the defendant physician in Hall, even though King

was published years after the physician's conduct that was at issue

in Hall.

11 Id. at 877 (citations and quotations omitted).

12 254 So.2d 183 (Miss.1971).

5 the time Dr. Hil bun prescribed post-operative care for Mrs.

Hall he acted in reliance upon the validity of st andards

substantially more favorable to him than those we state today,

that would weigh heavily in support of non-retroactivity. We

do not perceive this to be the case.

What we say today with regard to the standard of care amounts to little more than the law catching up with the way

physicians have practiced their profession for years.

Moreover today's decision was "cl early foreshadowed" 9 by the

dictum in Dazet v. Bass, and by King v. Murphy. 10 We today do

little more than fulfill the prophecy of Dazet and smooth some

of King's rough edges. Seen in this context, retroactivity

works no unfairness. 11

Thus, the 1985 Hall decision retr oactively applied the

resourced-based national standard of care to 1978 conduct. The

Hall court found that Dazet v. Bass, 12 a 1971 d ecision, "clearly

foreshadowed" the eventual adoption of the na tional standard of

care, thus mitigating any unfairness to the defendant physicians.

In Dazet the plaintiff attacked the locality rule.

Plaintiff contends with a great deal of force that the

so-called "locality rule" is no longer valid for the reason

that physicians now attend the same colleges, receive the same

post graduate courses in their specialties, and go to the same13 Id. at 187.

14 Id.

15 471 So.2d 385 (Miss.1985) (citations omitted).

16 Id. at 393.

6 seminars; that the standards of care for a specialist should

b e and are the same throughout the country, and that

geographical conditions or circumstances are no longer valid

as controlling the standards of a specialist's care or

competence. 13

Although the court rejected the plaintiff's argument on

procedu ral grounds, the court noted that the point had

"considerable force". 14

In another 1985 case, Reikes v. Mart in, 1 5 the Mississippi

Supreme Court applied Hall. In R eikes, the court found numerous

errors occurred during trial and remanded the case. The court

instructed:

[I]n view of our recent decision in Hall v. Hilbun, we hold

that [the expert's ] testimony cannot be excluded simply

because he was not familiar with the practice of medicine in

the locality of Hattiesburg. Upon retrial, as to this aspect

of his competency as an expert witness, the circuit judge will

be governed by the criteria we set forth in Hall v. Hilbun. 16

Reikes is significant here. The conduct at issue in R eikes

occurred in 1975. The majority opinion clearly requires that the

trial court apply the evidentiary rule propounded in Hall. The

majority does n ot expressly state that the national standard of

care applies retroactively to the same conduct, but the evidentiary

rule and the standard of care seem inextricable. According to the

majority, the trial court could not require that the expert witness

be "familiar with the practice of medicine in the locality of1 7 Apparently Justice Walker, too, felt that the majority called

for the retroactive application of the national standard. Justice

Walker "dissent[ed] from that portion of the opinion which permits

the new trial to be governed by the new rules of law with respect

to the standard of care required of physicians pronounced by [the

Mississippi Supreme Court] in Hall v. Hilbun ". R e ikes, 471 So.2d

385, 394 (Miss.1985) (Walker J., dissenting)

18 608 So.2d 1288 (Miss.1992).

19 Id. at 1298.

20 Id. at 1300.

7 Hattiesburg". If the expert is not familiar with the locality,

then he could testify only as to the resource-based national

standard. 17

This line of precedent supports the plaintiff's contention

that the resource-based national standard adopted in H all should

have been applied to the defendant physicians' 1975 conduct. The

district court, in reversing its dec ision to apply the national

standard, relied on Presley v. Mississippi State Highway Comm'n. 18

This reliance is misplaced.

In Presley, the Mississippi Supreme Court found portions o f

the Mississippi Sovereign Immunity Act, Miss.Code Ann. § 11-46-1 et

seq, unconstitutional and considered whether to strip the state of

immuni ty retroactively. The court observed that "[t]o hold now

that no immunity has existed since 1984 poses fiscally disastrous

consequences to our state and its political subdi visions", 1 9 and

that "our decision today has not been "clearly foresh adowed' ". 2 0

The court also addressed the special nature of the retroa ctivity

issue presented in Presley.

[W] e do not here deal with tortfeasors in the ordinary21 Id. at 1299.

22 Hall, 466 So.2d at 877.

8 sense. That is, we do not deal with human beings guilty of

careless or intentional wrong. There is no immunity accorded

t he active wrongdoer by the [Mississippi Sovereign Immuni t y

Act]. What we treat here is the question whether the

taxpayers stand exposed to liability for such wrongs. 21

As the Presley court pointed out, the retroactivity issue

presented in that case differs greatly from the retroactivity issue

presented here. The instant case deals with the actions of

"tortfeasors in the ordinary sense" not actions that could affect

the state treasury.

The district court bolstered its decision to apply the local

standard of care by relying on certain language in the Hall

decision. The Hall court stated that "if it could be demonstrated

that at the time Dr. Hilbun prescribed post-operative care for Mrs.

Hall he acted in reliance upon the validity of standards

substantially more favorable to him than those we state today, that

would weigh heavily in support of non-retroactivity". The district

court then determined that the defendant physicians in this case

relied on local standards "substantially more favorable" to them

than the resource-based natio nal standard. The problem with the

district court's approach is that the H all court itself broadly

rejected the possibility that the defendant physician in that case

had justifiably relied on a more favo rable distinct "local"

standard of care; "[w]hat we say today with regard to the standard

of care amounts t o little more than the law catching up with the

way physicians have practiced their profession for years". 22 As23 See Id. at 870.

9

pointed out by the court in Hall, the historical justification for

such "local" standards was seriously que stioned by the court as

early as 1971 in Dazet. 23

The Hall court carefully considered the retroactivity issue in

the conte xt of medical malpractice and decided that applying the

resource-based national standard of care to the de fendant

physician's 1 978 conduct was merely a recognition "of the way

physicians have practiced their profession for years". There is no

indication in the Hall decision, or any subsequent case, that the

Mississippi Supreme Court would hesitate to apply Hall to conduct

occurring just three years earlier. In fact, in Reikes the court

did just that. In the light of all of the above, the district

court should have followed Hall and instructed the jury as to the

resource-based national standard of care.

We have considered the othe r issues raised by the plaintiff

and find them without merit.

Accordingly, we REVERSE the district court's rulin g denying

pl aintiff's motion for new trial and REMAND this case for a new

trial consistent with this opinion.