BARBARA J. BRADLEY and MICHAEL BRADLEY, Plaintiffs, Appellants,
DAVID J. SUGARBAKER, M.D., Defendant, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Denise J. Casper, U.S. District Judge]
Michael Bradley, pro se, with whom Barbara J. Bradley, pro
se, were on brief, for appellants.
L. Wilkinson, with whom Philip E. Murray, Jr., Carol Ann
Kelly and Murray, Kelly & Bertrand, P.C. were on brief,
Torruella, Thompson, and Kayatta, Circuit Judges.
TORRUELLA, Circuit Judge.
Bradley and her husband, Michael Bradley, sued Dr. David
Sugarbaker, a thoracic surgeon at Brigham and Women's
Hospital in Boston, after Dr. Sugarbaker performed a surgical
biopsy on Ms. Bradley that resulted in extensive
complications. A trial ensued and the jury returned a verdict
in favor of Dr. Sugarbaker. The Bradleys appealed, and we
vacated the judgment and remanded on account of the district
court's error in excluding the testimony of the
Bradleys' proffered expert witness. A second trial
followed, with the jury again returning a verdict in favor of
Bradleys appeal to us once more, asserting that, on remand,
the district court erred in: (1) admitting an entry from Ms.
Bradley's diary under Fed.R.Evid. 807's
"residual exception" to the hearsay rule; (2)
admitting an excerpt from Ms. Bradley's medical records
from a different hospital under Fed.R.Evid. 803(6)'s
"business records" exception to the hearsay rule;
and (3) determining that the Bradleys had waived their
medical negligence claim. We conclude that, assuming the
district court erred in admitting these two pieces of
evidence, those errors were harmless. We further hold that
the district court did not commit prejudicial error when it
found the Bradleys to have waived their negligence claim. As
a result, we affirm the district court's judgment in
favor of Dr. Sugarbaker. Our reasoning follows.
our first opinion pertaining to this dispute recounts the
underlying facts in substantial detail, see Bradley
v. Sugarbaker, 809 F.3d 8, 11-13 (1st Cir.
2015) (Bradley I), we provide a more succinct
November 9, 2004, Ms. Bradley -- still suffering from various
serious injuries resulting from a car accident two years
earlier -- underwent an MRI. The MRI revealed the existence
of a potentially cancerous mass at the top of her right lung.
On December 7, 2004, Ms. Bradley met with Dr. Sugarbaker for
the first time. He told her that the mass could either be
scar tissue from her car accident-related injuries or a
malignant tumor, and that a biopsy would be necessary to
definitively rule out cancer. Dr. Sugarbaker further
explained that while he had reservations about whether a fine
needle aspiration (FNA) biopsy would be feasible,
would request that an interventional radiologist determine
whether an FNA was possible in Ms. Bradley's case. He
referred this determination to Dr. Francine Jacobson, a
thoracic radiologist at Brigham and Women's Hospital.
Were an FNA not possible, Ms. Bradley would be left with the
option of undergoing a surgical biopsy, a more invasive
procedure. In the interim --and in anticipation of a
potential determination that an FNA was possible -- Ms.
Bradley had an appointment made for an FNA at Hartford
Hospital in Connecticut.
following day, Dr. Sugarbaker's physician's
assistant, William Hung, appears to have called Ms. Bradley.
According to an entry in Ms. Bradley's personal diary,
Hung relayed to her that a radiologist had determined that,
due to the location of the mass in her lung, an FNA biopsy
would not be possible, and that she would therefore have to
undergo a surgical biopsy. Ms. Bradley then called Hartford
Hospital to cancel her appointment for an FNA there.
Sugarbaker performed a surgical biopsy on Ms. Bradley on
December 17, 2004. Ms. Bradley awoke from the operation to
both good and bad news. The biopsy had revealed that the mass
in her lung was not cancerous. But, she found herself in the
hospital's intensive care unit, the procedure having left
her lung with multiple air leaks, which caused her to remain
in the hospital for another week. Ms. Bradley has since
experienced a number of serious and painful complications --
including pulmonary infections requiring surgery to treat --
that in 2006 forced her to leave her job as a law librarian.
See id. at 12.
Bradleys sued Dr. Sugarbaker in federal district court in
2007. Their Second Amended Complaint alleged medical
negligence, battery, and the failure to obtain informed
consent. Their informed consent claim -- crucially, for our
purposes --revolved around the allegation that "Mrs.
Bradley did not have enough information to "ma[k]e an
informed choice [as to] whether to undergo less intrusive
methods for obtaining biopsy tissue than an open surgical
biopsy." Dr. Sugarbaker moved for summary judgment on
all of the Bradleys' claims. The district court granted
summary judgment on the Bradleys' battery claim, denied
summary judgment on their informed consent claim, and did not
expressly render a decision as to their negligence claim. The
case proceeded to trial, and the jury ultimately returned a
verdict in Dr. Sugarbaker's favor.
Bradleys then appealed, asserting that the district court had
erred both in granting summary judgment on their battery
claim and in excluding as irrelevant the testimony of an
expert witness they sought to call at trial. Id. at
13. We held that the district court properly granted summary
judgment on the battery claim. Id. at 13-17. But,
because we found that the Bradleys' proffered
expert's testimony was relevant to their informed consent
claim, we vacated the judgment and remanded for a new trial.
Id. at 22-23. Lastly, we took up the Bradleys'
related contention that the expert's testimony would also
have been relevant to their negligence claim. Id. We
observed that "the negligence claim does not appear ever
to have reached the jury: the verdict form only references
Mrs. Bradley's informed consent claim, and the jury
instructions were limited to the elements of informed
consent." Id. at 23. Thus, "[i]n light of
the poorly developed record on this issue, " we left it
to the district court to consider on remand whether this
testimony was also relevant to any surviving medical
negligence claim. Id.
remand, and before a different judge, the district court
clarified that "retrial shall be confined to the claim
at the first trial: informed consent." The court
explained that "[t]his case from the summary judgment
stage through pretrial phases through trial . . . has been
framed and litigated as an informed consent case."
Therefore, the court held that "to the extent that
Plaintiffs pressed any negligence claim separate and apart
from the informed consent claim, any such claim has been
the second trial, the Bradleys moved in limine to exclude as
hearsay an entry in Ms. Bradley's personal diary from
December 9, 2004 (the "diary entry"). The entry
described her conversation the day before with Hung, when he
informed her of Dr. Jacobson's determination that an FNA
biopsy was not feasible. The diary entry stated, in relevant
We were told by Dr. Zellos . . . that a radiologist would
need to review the PET Scan to determine if the lung biopsy
can be done using a needle & a CAT Scan or whether
surgery will be necessary. The answer to this question was
received on Wednesday 12/8. We spoke with Bill Hung - the PA
- on Wednesday. This was after Michael made several calls to
the Clinic in order to get some answers: Bill explained that
the radiologist determined that the tumor would be too
difficult to access via the CAT Scan Procedure & surgery
would most likely be needed.
district court held that the diary entry was admissible as
non-hearsay to the extent that it bore on Ms. Bradley's
state of mind. It further held that the diary entry was also
admissible for the truth of the matter asserted under the
residual exception to the hearsay rule found in Fed R. Evid.
did the Bradleys object to an excerpt from Ms. Bradley's
records from Hartford Hospital (the "Hartford
record") that Dr. Sugarbaker sought to introduce at
trial. That proffered exhibit indicated that Ms. Bradley had
called Hartford Hospital to cancel her FNA appointment there.
The exhibit also included a post-it note affixed to that page
of her medical records. The post-it note bore a hand-written
message, dated December 10, 2004, stating that "Brigham
& Women's . . . radiologists said it doesn't look
possible to [biopsy] the lesion." The district court
held that the note was substantively admissible under the
business records exception to the hearsay rule. See