### The Honorable Howard F. Sachs, United States District Judge 1 

### for the Western District of Missouri, sitting by designation. United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 97-2659

___________ Louis Sanford, also known * as Skip Sanford, parent and * legal guardian of Loretta * Jeanette Sanford; Shelly * Sanford, parent and legal * guardian of Loretta Jeanette * Sanford, * * Plaintiffs/Appellants, * * * Appeal from the United States v. * District Court for the Eastern * District of Arkansas. * Crittenden Memorial Hospital; * Phico Insurance Company; * Spectrum Emergency Care, Inc., * * Defendants, * * Deborah Nelson, Dr., * * Defendant/Appellee. *

___________ Submitted: January 16, 1998 Filed: April 14, 1998

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

___________

### The Honorable G. Thomas Eisele, United States District 2 

### Judge for the Eastern District of Arkansas.
-2- SACHS, District Judge. Louis a nd Shelly Sanford, who brought suit on their own behalf an d as parents and guardians on behalf of their daug hter Jetta Sanford, appeal from the d istrict court's grant of a new trial in their medical malprac- 2 tice action against Dr. Deborah Nelson. We affirm.

I. On Frida y January 28, 1994, Shelly Sanford took her daughter Jett a Sanfor d to Dr. Jina Brown's West Memphis, Arkansas, medical offic e complaini ng that Jetta had a two week cough, cold symptoms and a fever

. Dr. Brown diagnosed Jetta as suffering from an ear infection and prescribe d antibiotics. That evening, Jetta's parents took her to Crittenden Memoria l Hospital due to fever and general discomfort. After being seen by a nurse , Jetta was discharged with instructions to continue the antibiotics.

The next day, Saturday, January 29, 1994, Dr. Deborah Nelson was the pediatrician on call for Dr. Brown. On that day, Dr. Nelson returned phon e calls from Shelly San ford concerning Jetta's continued high fever at 3:00 p.m. and 3:30 p.m. Dr. Nelson advised Shelly Sa nford to continue with the antibiotics, to take Advil and to call if the symptoms worsened.

The next afternoon, Dr. Nelson returned a call from Louis Sanford , who i ndicated that Jetta was "lifeless." Dr. Nelson referred Jetta t o LeBonh eur hospital, where she was admitted and diagnosed with bacteria l meningitis. Jetta remained hospitalized until February 14, 1994. He r meningitis was successfully treated, but not before she suffered a total loss of hearing.

### Dr. O'Mara testified that Jetta should have been tested for 3 

### meningitis, and that even if the results were negative she should have been treated with intravenous antibiotics or a very strong antibiotic generally used after meningitis has developed. Dr. Nelson's medical expert witness acknowledged that there was some"logic" to Dr. O'Mara's causation theory, and that one particularly powerful antibiotic, Rocephin, might have prevented meningitis. There was further defense testimony that, for reasons noted at trial, Rocephin was not used in standard practice as a preventative.
-3- The Sanfords invoked the district co urt's federal question jurisdiction, bringing suit against Crittenden Memorial Hospital for breach of dut y under the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd, and breach of contract. The Sanfords sued Dr. Nelson fo r neglige nce under Arkansas law. Prior to trial, the Sanfords' medica l expert, Dr. O'Mara, opined that Jetta had meningitis at the time Dr. Nelso n was first contacted o n January 29, 1994, and that Dr. Nelson's failure to dia gnose and treat Jetta for meningitis at that time proximately cause d Jetta's hearing loss. Midway through trial, however, after proof that onc e
a person has meningitis there is no drug that will prevent deafness in a surviving patient (thirty percent will become de af regardless of method or timing of treatment), Dr. O'Mara's opinion chang ed. Dr. O'Mara testified, contrary to his deposition testimony and the opening statement in the case , that Jetta did not ha ve meningitis as of 3:30 p.m. on September 29, 1994, and that Dr. Nelson could and should have preven ted Jetta from contracting meningitis by admitti ng her to the hospital and administering drugs aimed at treating meningitis. 3

The district court submitted the case to the jury. The jury re turned a verdict in favor of the Sanfords and against b oth Dr. Nelson (40% fault) and Crittenden Memorial Hospital (60% fault), awarding damages o f $2,500,000 for Jetta Sanford and $1,000,000 for her parents. Crittenden settled with the Sanfords. Dr. Nelson moved for judgment as a matter of law and, in the alternative, a new trial. After expressing seriou s reservations about the legal

### The Sanfords' decision to neither oppose the motion for 4 

### summary judgment nor appeal the district court's order granting it gives rise to an inference that they were unable to adequately respond. Nevertheless, we will give the Sanfords the benefit of the doubt on this point.
-4- adequacy of the medic al and scientific testimony introduced at trial, the district court nevertheless denied Dr. Nelson's motion for judgment as a matter of law. Howev er, the district court granted Dr. Nelson's alternative motion for a new trial, basing its decision on, among other things, the size of the verdict in favor of Jetta Sanford's parents and the elemen t of surprise introduced by Dr. O'Mara's mid-trial change of testimony.

Before the second trial, Dr. Nelson moved for summary judgment , arguing that the testimony of Dr. O'Mara lacked a scientific basis and was therefore insufficient to create an issue of material fact regarding the standard of care or causation. The Sanfords declined to submit furthe r argument or evidence in response to the motion, and instead expressed thei r desire to appeal from the district court's grant of a new trial. Th e distri ct court granted Dr. Nelson's motion for summary judgment -

- providing a final, appealable judgment -- and the Sanfords lodged thi s appe al challenging only the district court's decision to grant a ne w trial. 4

II. "The authority to grant a new trial . . . is confided almost en tirely to the e xercise of discretion on the part of the trial court." Allie d Chem. Corp . v. Daiflon, Inc. , 449 U.S. 33, 36 (1980). We review th e district court's deci sion for a clear abuse of that discretion. Pitts v. Electro-Static Finishing, Inc. , 607 F.2d 799, 80 3 (8th Cir. 1979). Where,

as h ere, the size of the verdict provided a basis for a new trial, ou r review is extraordina rily deferential. It has long been our opinion that the matter is:

### -5- basically, and should be, . . . for the trial court which has had the benefit of hearing the testimony and of observing the demeanor of the witnesses and which knows the commu nity and its standa rds; . . . and that we shall continue to review, as w e have said before, not ro utinely and in every case, but only in tho se rare situations where we are pressed to conclude tha t there i s 'plain injustice' or a 'monstrous' or 'shocking ' result.

Solomon Dehydrating Co. v. Guyton , 294 F.2d 439, 447-48 (8th Cir. 1961 ) (Blackmun, J.); Nodak Oil Co. v. Mobil Oil Co. , 533 F.2d 401, 411 (8th Cir

. 1976).

Although the appropriateness of a new trial is a federal procedural question decided by reference to federal law, Pitts , 607 F.2d at 802, in determining whether a state law claim damage award is excessive, state cas e law guides our inquiry. England v. Gulf & Western Mfg. Co. , 728 F.2d 1026 , 1029 (8th Cir. 1984). Under Arkansas law, a ver dict is excessive if "'the amount shocks the con science of the court or demonstrates that the jurors
were motivated by passion, prejudice or undue influence.'" White v

. Mitchell , 568 S.W.2d 216, 224 (Ark. 1978) (quoting Jordan v. Adams , 53 3 S.W.2d 210, 213 (Ark. 1976)).

Here the district court concluded that the $1,000,000 verdict i n favor of J etta's parents was "clearly excessive under the law and th e
cour t's instructions to the jury" and that the amount "shock[ed] th e judicial conscience." After a review of the record, we cannot say tha t this conclusion was plainly unjust, the lowest requirement for reversal. The un contested jury instructions specified that the damage award t o Jetta's pa rents was limited to: 1) the reasonable expense of medica l treatment and services received by Jetta; 2) the present value of an y future medical care equipment reasonably certain to be required; and 3) th e
reason able value of Jetta's services and contributions that the parent s have lost and the present value of Jetta's servi ces and contributions that the parents are reasonably certain to lose in the future. The

### This is the annotator's suggested basis for generous 5 

### recoveries in Annotation, Parent's Right to Recover for Loss of Consortium in Connection With Injury to Child , 54 A.L.R.4th 112, 118 n. 6 (1993).
-6- partie s stipulated that the parents had incurred $10,892 in medica l expenses for Jetta's treatment. Although there was evidence at trial abou t variou s equipment available to deaf persons, there was little testimon y identifying which of these devices Jetta would n eed or require or that the likelycost could largely account for the verdict. In light of this, we can not conclude that the district judge abused his discretion in holding that the $1,000,000 verdict in favor of Jetta's parents was excessive.

Counsel for the Sanfords argues, without citation of Arkansas law , that we should fault the district judge for fail ing to permit nonpecuniary losses "'in the guise of recovery for loss of services.'" We acknowledge 5 that the Arkansas cou rts appear to allow some "conjecture" by the jury as to what a child's services might have been, in the absence of death o r injury, and how they should be valued. Norman v. Gray , 383 S.W.2d 489 , 492-3, (Ark. 1964). Federal judicial responsibility for reviewing verdict s in such cases may be reflected, however, by the treatment of a New Yor k recovery for $224,000 for loss of a youth's services, which the appellate court r uled must be reduced to $7,000 per year for the remainder of th e child's minority. Martell v. Boardwalk Enterprises, Inc. , 748 F.2d 740, 755 (2d Cir. 1984). We believe the district judge in this case was fully authorized to intervene.

Th e Sanfords argue that the district court should have ordered a partial new trial on the issue of damages, rathe r than a new trial on both liabilityand damages. We disagree. The trial judge stated that in his "view . . . the jury was moved by passion and emotion." Where the distric t court concludes that passion influenced the juro rs, a partial new trial on the issue of damages only is generally inappropr iate. See, e.g. , England , 728 F.2d at

### In any event, we are not persuaded that granting a new 6

### trial on all the issues in the case, rather than just the questions of liability and damages for Jetta's parents, would constitute an abuse of discretion. See, e.g. , Mueller v. Hubbard Milling Co. , 573 F.2d 1029, 1039-40 (8th Cir. 1978) (excessive verdict amount on one claim because of passion or prejudice "may well have influenced the jury on the liability issues" on the other claim; new trial on both liability and damages appropriate on both claims). If this question of a partial new trial had been presented, the district judge would have been entitled to consider his qualms about the medical proof and the fairness of the trial proceedings in determining whether, on balance, a complete new trial should be scheduled.

-7- 1029 (ca utioning against district court use of the words "bias an d prejudice" unless the evidence warrants a new trial on both liability and damages). "[P]assionor prejudice may affect the decision of the jury on the issue of liability as well as damages." Everett v. S.H. Parks & Assoc., I nc. , 697 F.2d 250, 253 n. 5 (8th Cir. 1983). Absent unusua l circumstances, where a damage award is motivated by passion or prejudice,
a remittitur is not appropriate. See Parsons v. First Investors Corp. , 12 2 F.3d 525, 529 (8th Cir. 1997). Accordingly, we find no abuse of discretio n in the district court's decision to grant a new trial on both liability an d damages.

The Sanfo rds argue on appeal that even if a new trial on grounds of excessiveness of verdict should have been granted as to the parents, the verdict in favor of Jetta should not have been set aside along with it

. This argument was not raised in the district cou rt ( see Appendix on Appeal at 230-36), and is not subject to review here. 6

In additi on, we believe that the district court correctly cited the dramatic mid-trial shift in testimony by Dr. O'Mara -- from a failure to diagnose to a failure to prevent -- as a reason for granting a new trial. Surprise during trial, by major variance in theo ry of recovery or defense, undisclosed until after the trial

### -8-

is underway, is a long-established ground for gr anting a new trial motion. See, e.g. , Perez-Perez v. Popular Leasing Rental , Inc. , 993 F.2d 281, 286- 88 (1st Cir. 1993) (undisclosed rebuttal medical testimony that driver, wh o had testified he could "see without glasses if I want to," suffered from seriouslydisabling glaucoma); Twigg v. Norton Co. , 894 F.2d 672, 674-75 (4th C ir. 1990) (mid-trial change of position regarding theory o f recovery); Conway v. Chemical Leaman Tank Lines, Inc. , 687 F.2d 108, 112 (5t hCir. 1982) (introduction of new theory by expert witness mid-tria l constituted unfair surprise justifying new trial).
In light of the expert's shift of th eories, we can not conclude that the dist rict judge abused his discretion in finding that the tria l testimony on liability and medical causation was confusingly presented and , at best, inconclusive and that a new trial was in order. In sum, we are veryfar from concluding that this is one of those rare cases in which a new trial decision should be changed on appeal.

For the reasons indicated, we affirm.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.