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Bradley v. Sugarbaker

United States Court of Appeals, First Circuit

May 23, 2018

BARBARA J. BRADLEY and MICHAEL BRADLEY, Plaintiffs, Appellants,
DAVID J. SUGARBAKER, M.D., Defendant, Appellee.


          Michael Bradley, pro se, with whom Barbara J. Bradley, pro se, were on brief, for appellants.

          James L. Wilkinson, with whom Philip E. Murray, Jr., Carol Ann Kelly and Murray, Kelly & Bertrand, P.C. were on brief, for appellee.

          Before Torruella, Thompson, and Kayatta, Circuit Judges.

          TORRUELLA, Circuit Judge.

         Barbara 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 Dr. Sugarbaker.

         The 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.


         Because 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 summary here.


         On 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, [1]he 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.

         The 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.

         Dr. 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.


         The 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.

         The 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.

         On 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 waived."

         Before 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 part:

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.

         The 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. 807.

         So too 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 ...

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