Alexander v. Mount Sinai Hospital Medical Center

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-1823

IRMA ALEXANDER, Special

Administrator of the Estate of

CHRISTEN CRUTCHER, deceased,

Plaintiff-Appellant,

v.

MOUNT SINAI HOSPITAL MEDICAL

CENTER, SINAI HEALTH SYSTEM,

d/b/a MOUNT SINAI HOSPITAL

MEDICAL CENTER OF CHICAGO,

SINAI MEDICAL GROUP, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00 C 2907—Charles P. Kocoras, Judge.

____________

ARGUED MARCH 31, 2006—DECIDED APRIL 24, 2007

____________

Before ROVNER, EVANS and SYKES, Circuit Judges.

ROVNER, Circuit Judge. Irma Alexander (“Alexander”) is

the daughter of Christen Crutcher, a woman who died

while receiving medical treatment at Mount Sinai Hospi-

tal. As administrator of her mother’s estate, Alexander

brought a malpractice action in the Circuit Court of Cook

County against the corporate entities and individual

physicians involved in her mother’s care. The United

2 No. 05-1823

States removed this malpractice case to federal court

because one of the defendants, Dr. Godwin Onyema (“Dr.

Onyema”), was deemed to be a federal employee under the

Public Health Service Act (“PHSA”), as amended by the

Federally Supported Health Centers Assistance Act of

1995 (“FSHCAA”), 42 U.S.C. § 233. A trial resulted in

judgment in favor of all of the defendants. On appeal,

Alexander challenges subject matter jurisdiction, arguing

that Dr. Onyema could not be deemed a federal employee

because he did not personally contract with a federally

funded health center. Alexander also challenges the

district court’s directed verdict in favor of one of the

defendants as well as several rulings the district court

made in the course of the trial. We affirm.

I.

We begin with the question of subject matter jurisdic-

tion, which we review de novo. Samirah v. O’Connell, 335

F.3d 545, 548 (7th Cir. 2003). We also review de novo a

district court’s decisions regarding the propriety of re-

moval. Oshana v. Coca-Cola Co., 472 F.3d 506, 510 (7th

Cir. 2006). The Federal Employees Liability Reform and

Tort Compensation Act of 1988, commonly known as the

Westfall Act, accords federal employees absolute im-

munity from common-law tort claims arising out of acts

they undertake in the course of their official duties. See 28

U.S.C. § 2679(b)(1); Osborn v. Haley, 127 S. Ct. 881, 887

(2007). When a federal employee is sued, the Westfall Act

empowers the Attorney General to certify, if appropriate,

that the employee was acting within the scope of his or her

employment at the time of the incident in question. 28

U.S.C. § 2679(d)(1), (2). If the Attorney General issues

such a certification, the employee is dismissed from the

action and the United States is substituted as the defen-

dant in place of the employee. 28 U.S.C. § 2679(d)(1).

No. 05-1823 3

Thereafter, the lawsuit is governed by the Federal Tort

Claims Act (“FTCA”). 28 U.S.C. § 2671 et seq. If the action

was filed in state court, the case must be removed to

federal court. 28 U.S.C. § 2679(d)(2). The “certification of

the Attorney General shall conclusively establish scope of

office or employment for purposes of removal.” Id.

Although Dr. Onyema was not a federal employee, he

was working at Sinai Family Health Centers (“Sinai”), a

federally supported health care center, at the time of the

incident at issue here. Dr. Onyema had formed an “Illinois

Medical Service Corporation” called Onyema Medical

Service, Ltd.1 He was the sole shareholder and sole

employee of this entity. Onyema Medical Service entered

into an agreement with Sinai under which Dr. Onyema

was to supply medical services to Sinai’s various commu-

nity health centers. Dr. Onyema signed the contract in his

own name on a line labeled “Onyema Medical Service,

Ltd.” The FSHCAA, like the Westfall Act, allows the

government to remove from state court a medical malprac-

tice action filed against a physician who is “deemed” to be

a federal employee. See 42 U.S.C. § 233. A physician who

is employed by or is a contractor for a federally funded

health center may be deemed by the government to be an

employee of the Public Health Service2 if a number of

conditions are met. See 42 U.S.C. § 233(h). Once a physi-

1

In Illinois, a physician may incorporate his or her practice

under the Medical Corporation Act. 805 ILCS 15/1, et seq. The

“Act does not alter any law applicable to the relationship be-

tween a physician furnishing medical service and a person

receiving such service, including liability arising out of such

service.” 805 ILCS 15/14.

2

The Public Health Service generally consists of the Office of

the Surgeon General, the National Institutes of Health, the

Bureau of Medical Services, the Bureau of State Services and

the Agency for Healthcare Research and Quality. See 42 U.S.C.

§ 203.

4 No. 05-1823

cian has been deemed to be a federal employee acting

within the scope of his or her employment duties, the

United States is substituted as the defendant and the

FTCA provides the exclusive remedy for the physician’s

negligence. See 42 U.S.C. § 233(c), (g). Moreover, once the

Secretary3 deems a physician to be an employee of the

Public Health Service, “the determination shall be final

and binding upon the Secretary and the Attorney General

and other parties to any civil action or proceeding.” 42

U.S.C. § 233(g)(1)(F).

Alexander brought this malpractice action in the Cir-

cuit Court of Cook County. Pursuant to 28 U.S.C.

§ 2679(d)(2) and 42 U.S.C. § 233(c), the United States

removed the action to federal court after it determined

that Dr. Onyema was a contract employee working in the

scope of his employment with a federally-funded health

center.4 See also 42 U.S.C. § 233(g)-(n). Specifically, the

Attorney General’s delegate certified that Sinai Family

Health Center was a private entity receiving grant money

from the Public Health Service pursuant to 42 U.S.C.

§ 233. R. 1. The delegate also certified that Sinai Family

Health Center’s “contract employee, GODWIN ONYEMA,

M.D., was acting within the scope of his employment at

the time of the incidents and is deemed to be an em-

ployee of the United States for Federal Tort Claims Act

purposes only pursuant to 42 U.S.C. § 233.” R. 1. The

United States thus removed the case to federal court and

moved to substitute itself for Dr. Onyema as the defen-

dant. See 28 U.S.C. § 2679(d)(2); 42 U.S.C. § 233(c), (g)-(n).

3

All references to the “Secretary” are to the Secretary of Health

and Human Services. See 42 U.S.C. § 201(c). All references to

the “Attorney General” are to the United States Attorney Gen-

eral or his designee.

4

No one disputes that Sinai was a qualifying federally funded

health center at the time of these events.

No. 05-1823 5

Thereafter, the United States moved to dismiss the case

because the plaintiff had failed to exhaust her admin-

istrative remedies as required by the FTCA. 28 U.S.C.

§ 2675(a). The district court granted the motion. Alexander

moved to reconsider, arguing that the government had

incorrectly deemed Dr. Onyema to be a federal employee

because Onyema Medical Service rather than Dr. Onyema

individually contracted with Sinai. According to Alexander,

the government could not treat Dr. Onyema and Onyema

Medical Service as identical without making a case for

piercing the corporate veil under Illinois law. The govern-

ment responded that federal tort law rather than Illinois

corporate law controlled the result and that the govern-

ment was entitled to deem Dr. Onyema, the sole employee

and sole shareholder of Onyema Medical Service, a fed-

eral employee. Citing Dedrick v. Youngblood, 200 F.3d 744

(11th Cir. 2000), the district court allowed Alexander to

take discovery on the issue of whether Dr. Onyema could

be deemed a federal employee in light of the contract

with Onyema Medical Service. Following discovery, the

district court found that Onyema Medical Service “essen-

tially acted as Dr. Onyema’s alter ego with respect to his

professional services relationship with Sinai.” Alexander v.

Mount Sinai Hosp. Med. Ctr. of Chicago, 165 F.Supp.2d

768, 772 (N.D. Ill. 2001). The court found that the issue of

whether a physician is a federal employee under the FTCA

is determined by federal, not state, law. Refusing to

elevate form over substance in characterizing the relation-

ship between Dr. Onyema and Sinai, the district court

concluded that Dr. Onyema was effectively an employee

of a public health center and thus a deemed employee of

the federal government. The court therefore dismissed Dr.

Onyema from the action and substituted the United States

as the defendant.

After Alexander exhausted her administrative remedies,

she returned to the district court to pursue her remedies

6 No. 05-1823

under the FTCA. Shortly thereafter, she learned that

in another case filed against Dr. Onyema by another

party, the government admitted that its decision to deem

Dr. Onyema a federal employee in Alexander’s case had

been mistaken. See Buckley v. Mount Sinai Hosp. Med.

Ctr., 2002 WL 554524 (N.D. Ill. April 12, 2002). Specifi-

cally, the government admitted in the Buckley case that

because Dr. Onyema had not contracted directly with

Sinai, he was not entitled to coverage under the FSHCAA.

The court in Buckley remanded the action to the state

court on the basis of the government’s representation that

Dr. Onyema was not a federal employee. Citing Buckley,

Alexander moved for reconsideration of the court’s

earlier decision dismissing Dr. Onyema and substituting

the United States as a defendant. The government op-

posed the motion, taking the position that, although it

made a mistake in Alexander’s case, all of the parties

were bound by the government’s original certification and

deeming decision under section 233(g)(1)(F). That section

provides:

Once the Secretary makes a determination that an

entity or an officer, governing board member, em-

ployee, or contractor of an entity is deemed to be an

employee of the Public Health Service for purposes of

this section, the determination shall be final and

binding upon the Secretary and the Attorney General

and other parties to any civil action or proceeding.

Except as provided in subsection (i) of this section, the

Secretary and the Attorney General may not determine

that the provision of services which are the subject of

such a determination are not covered under this

section.

42 U.S.C. § 233(g)(1)(F). The court denied the motion for

reconsideration, agreeing that section 233(g)(1)(F) bound

the parties to the government’s initial determination that

Dr. Onyema was a deemed federal employee. The court

No. 05-1823 7

also noted that under section 233(g), review of the govern-

ment’s decision to deem Dr. Onyema a federal employee

was extremely limited. Finally, the court noted that it

had rested its decision not only on the representations of

the government but also on its independent conclusion

that Dr. Onyema himself (and not the professional corpora-

tion for which he signed) was the contracting party.

Since that time, yet another malpractice action filed

against Dr. Onyema made its way to federal court in the

Northern District of Illinois. See ISMIE Mut. Life Ins. Co.

v. U.S. Dept. of Health and Human Servs., 413 F.Supp.2d

954 (N.D. Ill. 2006). In that case, after the Secretary

refused to deem Dr. Onyema a federal employee, the

doctor’s malpractice insurer sued the U.S. Department of

Health and Human Services (“HHS”) seeking to overturn

that decision. The district court in the ISMIE case framed

the issue as whether Dr. Onyema is excluded from cover-

age under the FTCA and the FSHCAA because he con-

tracted with a federally-funded clinic through his epony-

mous professional corporation rather than as an individ-

ual. 413 F.Supp.2d at 955. The ISMIE action grew out of

a malpractice case filed in state court against Dr. Onyema

and the clinic where the plaintiff was treated. The govern-

ment determined that the clinic was an entity covered

under FSHCAA but that Dr. Onyema was not. The govern-

ment removed the case to federal court based on the

clinic’s status as a covered entity. As in Alexander’s case,

the government then moved to dismiss the case against

the clinic for failure to exhaust administrative remedies.

The district court obliged and returned the remaining

claims to state court. As the malpractice case proceeded

in state court with Dr. Onyema’s malpractice insurer

providing his defense, the insurer sought a declaration

in federal court that Dr. Onyema is a covered contractor

under FSHCAA and that HHS was responsible for Dr.

Onyema’s defense. ISMIE, 413 F.Supp.2d at 957-58.

8 No. 05-1823

The district court ruled that HHS was judicially

estopped from asserting that Dr. Onyema was not covered

under FSHCAA because the government had deemed Dr.

Onyema to be a federal employee in Alexander’s case.

ISMIE, 413 F.Supp.2d at 959. In the alternative, the

district court found that HHS’s decision not to deem Dr.

Onyema a federal employee was contrary to the law.

Finding the reasoning of the district court in Alexander’s

case to be persuasive, the court rejected the elevation of

form over substance and found that Dr. Onyema was no

less a contractor simply because he signed the contract

through his professional corporation. The court thus

ruled that Dr. Onyema should be deemed a federal em-

ployee. ISMIE, 413 F.Supp.2d at 961.

This strange history of Dr. Onyema’s three odysseys

through the Northern District of Illinois brings us to the

instant appeal where Alexander argues that the district

court lacked subject matter jurisdiction over the case.

Specifically, Alexander contends that Dr. Onyema could

not be deemed a federal employee as a contractor of a

publicly funded health center because he had no direct

contract with the health center. Alexander asks us to

reverse and remand with directions to dismiss the case for

lack of jurisdiction so that the district court may return

the matter to the state court where it originated. The

government counters that even if the original deeming

determination was in error, all of the parties are statuto-

rily bound by the government’s decision. Moreover, the

government contends, the deeming decision in combina-

tion with the certification that Dr. Onyema was acting

within the scope of his employment at the time of the

relevant incident gives rise to federal jurisdiction. The

government contends that a positive deeming decision

by HHS is essentially unreviewable under section

233(g)(1)(F), but concedes that the Attorney General’s

scope of employment certification is judicially reviewable.

No. 05-1823 9

Of course, Alexander challenges only the deeming deci-

sion and not the scope of employment certification and that

must be the focus of our analysis.

Section 233(g)(1)(F) provides, as we noted above, that

once the Secretary deems an employee or contractor to

be an employee of the Public Health Service, that determi-

nation “shall be final and binding upon the Secretary and

the Attorney General and other parties to any civil action

or proceeding.” Alexander seems to concede that the

Secretary’s decision to deem a contractor to be an employee

of the PHS is final, binding, and not subject to review but

argues that 233(g)(1)(F) references only the deeming

decision and not the determination of whether one is a

contractor in the first place. Determining who is a “contrac-

tor,” Alexander argues, is a reviewable decision, and the

government here conceded that it erred when it character-

ized Dr. Onyema as a contractor.

Alexander cites three appellate court cases in support of

her claim that a party must be a direct contractor with a

publicly funded health center in order to qualify for

deemed employee status. See Dedrick v. Youngblood, 200

F.3d 744 (11th Cir. 2000); Allen v. Christenberry, 327 F.3d

1290 (11th Cir. 2003); El Rio Santa Cruz Neighborhood

Heath Ctr. v. U.S. Dep’t of Health and Human Servs., 396

F.3d 1265 (D.C. Cir. 2005). In each of these cases, however,

the government refused to deem the doctor involved to be

a federal employee. Nothing in section 233 or in 28 U.S.C.

§ 2679 (which the government also invoked when remov-

ing the case to federal court) prohibits review of the

government’s refusal to deem a contractor to be an em-

ployee of the PHS. None of these cases addresses whether

the government’s positive determination that a person

(natural or corporate) is a contractor is reviewable. Neither

party to this litigation points us to any case where a court

has addressed this very fine distinction that Alexander

10 No. 05-1823

seeks to draw. We have been unable to find a case directly

on point.

That said, the distinction that Alexander seeks to draw

between deciding who is a contractor and which contrac-

tors may be deemed federal employees is a false one.

Before deciding whether to deem a contractor of a federally

funded health center to be an employee of the public health

service, the government must necessarily first decide

whether the party at issue is a contractor with a qualifying

entity. No one disputes that Sinai was a qualifying entity.

The government’s threshold determination that Dr.

Onyema was a contractor of Sinai (even though the

contract was through his eponymous professional corpora-

tion) is necessarily part of the deeming decision and is

entitled to the same treatment as the deeming decision

itself. The final and binding nature of the government’s

determination would be meaningless if the losing party

could challenge the government’s interpretation of each

word in section 233(g)(1)(F). We note that the final and

binding nature of the government’s determination binds

not just the plaintiff and the doctor but also binds the

government. In this case, if the jury had found in favor

of Alexander, the government would have been liable for

the judgment even though the government later deter-

mined that Dr. Onyema was not entitled to the govern-

ment’s protection.

A recent Supreme Court decision lends further support

to our conclusion that the district court possessed subject

matter jurisdiction over the case even though the United

States was admittedly mistaken in its certification. See

Osborn v. Haley, 127 S. Ct. 881 (2007). Osborn, the

plaintiff, worked for Land Between the Lakes Association

(“LBLA”), a private company that contracted with the

United States Forest Service. She applied for a trainee

position with the Forest Service. Haley was in charge of

hiring decisions and he hired someone else for the position.

No. 05-1823 11

Osborn ridiculed Haley at the meeting where his hiring

decision was announced and she then refused her supervi-

sor’s directive to apologize to Haley. Osborn subsequently

filed a complaint with the United States Department of

Labor, asking that the hiring decision be investigated. The

investigation resulted in a finding that hiring procedures

had been properly followed. Osborn’s supervisors again

asked her to apologize to Haley and when she again

refused, she was fired. She sued Haley in state court for

tortiously interfering with her employment relationship

with LBLA, charging that Haley induced LBLA to fire her.

The Attorney General certified that Haley was acting

within the scope of his employment at the time of the

incident out of which Osborn’s claim arose, and removed

the case to federal court. The government asked that the

United States be substituted for Haley as the defendant

and that the action be dismissed for failure to exhaust

administrative remedies. Osborn opposed the substitu-

tion of the United States as the defendant, arguing that

Haley’s conduct was outside the scope of his employ-

ment. The district court agreed and overruled the certifica-

tion on the scope of employment. Because the United

States was no longer a party, there was no diversity of

citizenship and no federal law at issue, the district court

then remanded the case to state court. When the United

States moved for reconsideration, the court clarified that

the certification was improper because the United States

denied the occurrence of the event central to Osborn’s

claim.

The United States appealed. The Supreme Court re-

marked that section 2679(d)(2) provides that certifica-

tion by the Attorney General “shall conclusively establish

scope of office or employment for purposes of removal.”

Osborn, 127 S. Ct. at 894. This provision, the Court noted,

differs markedly from the command of section 2679(d)(3),

which addresses cases in which the Attorney General

12 No. 05-1823

refuses to certify the scope of employment. In such a case,

the defendant employee may petition the court to make

the scope of employment certification; if the case was

filed in state court, the Attorney General is then permitted

but not required to remove the case to federal court. If the

court subsequently determines that the employee was not

acting within the scope of his or her employment, section

2679(d)(3) commands that the action “shall be remanded

to the State court.” The Court found that, in contrast, in

cases where the Attorney General affirmatively certifies

the scope of employment, “Congress gave district courts

no authority to return cases to state courts on the ground

that the Attorney General’s certification was unwar-

ranted.” Osborn, 127 S. Ct. at 894. Rather, the Attorney

General’s certification “is conclusive for purposes of re-

moval.” 28 U.S.C. § 2679(d)(2). That section, the Court

held, did not preclude the district court from re-substitut-

ing the original defendant for the purposes of trial if the

court determined, post-removal, that the Attorney Gen-

eral’s scope of employment certification was incorrect. “For

purposes of establishing a forum to adjudicate the case,

however, § 2679(d)(2) renders the Attorney General’s

certification dispositive.” Osborn, 127 S. Ct. at 894.

Otherwise, the “conclusive” language of section 2679(d)(2)

would be meaningless. The Court opined that Congress

adopted the “conclusive for purposes of removal” language

to “foreclose needless shuttling of a case from one court to

another.” Osborn, 127 S. Ct. at 895 (quoting Gutierrez v.

Martinez-Lamagno, 515 U.S. 417, 433 n.10 (1995)).

The Court then addressed the question left open by

Lamagno, whether Article III permits treating the Attor-

ney General’s certification as conclusive for the purposes

of removal but not for purposes of substitution. Osborn,

127 S. Ct. at 896. The problem, the Court noted, was that

a case could be locked into federal court even though the

United States was not a party, there was no diversity of

No. 05-1823 13

the parties, and no federal question was at issue in the

litigation. The Court concluded that Article III allowed

this result because a significant federal question would

have arisen at the outset, specifically, whether the defen-

dant had Westfall Act immunity. The case would thus

“arise under” federal law as that term is used in Article

III. The Court found that considerations of judicial econ-

omy, convenience and fairness to the litigants made it

reasonable and proper for a federal court to proceed to

final judgment once it had invested the time and resources

to resolve the pivotal scope-of-employment question.

Osborn, 127 S. Ct. at 896.

In the instant case, the Attorney General certified

pursuant to section 233 that Sinai was a federally funded

health center and that Dr. Onyema was acting within the

scope of his employment at Sinai at the time of the inci-

dents giving rise to the complaint. In the notice of removal,

the United States invoked both section 233 and section

2679(d)(2). Given the invocation of section 2679(d)(2), the

very section the Supreme Court analyzed in Osborn, the

question of subject matter jurisdiction has been answered

by Osborn. The district court possessed subject matter

jurisdiction over the case because a significant federal

question arose at the outset, specifically whether Dr.

Onyema could be deemed an employee of the pubic health

system due to his professional corporation’s contract

with Sinai.5 The government answered that question af-

5

We pause to emphasize that nothing in our holding conflicts

with the decisions of the Eleventh and the D.C. Circuit courts

regarding situations where a doctor contracted with a publicly

funded health center through a professional corporation rather

than personally and individually. See Dedrick v. Youngblood, 200

F.3d 744 (11th Cir. 2000); Allen v, Christenberry, 327 F.3d 1290

(11th Cir. 2003); El Rio Santa Cruz Neighborhood Health Ctr. v.

(continued...)

14 No. 05-1823

firmatively, albeit mistakenly. Under section 233, neither

party could challenge the certification, and under section

2679(d)(2), the certification was conclusive for purposes of

removal. Osborn determined that a federal court could

retain jurisdiction over a case that was removed with an

erroneous certification without offending Article III. We

therefore reject Alexander’s challenge to subject matter

jurisdiction and turn to the remaining issues in her appeal.

II.

Alexander contends that the district court erred in

granting a directed verdict for Mount Sinai Hospital, the

entity that employed two of the physicians who treated

Christen Crutcher. She also faults the district court for a

number of evidentiary rulings and for allowing certain

comments by defense counsel during opening and closing

statements. Finally, she complains that the court itself

made remarks in the presence of the jury that were unduly

prejudicial, denying her a fair trial.

A.

Christen Crutcher (“Crutcher”) had a mass near her

uterus beginning sometime in the 1980s. In 1992, she was

5

(...continued)

U.S. Dep’t of Health and Human Servs., 396 F.3d 1265 (D.C. Cir.

2005). In none of those cases was the court faced with a positive

certification by the Attorney General. In Dedrick, the physician

sought certification from the court. In Allen, HHS refused to

certify the defendants-physicians and they sought to overturn

that ruling in the district court. And in El Rio Santa Cruz, HHS

also denied certification to the defendant-physicians. As we

have noted, the statutes involved treat positive certification

decisions very differently from denials of certification.

No. 05-1823 15

referred to Dr. Onyema for examination of this mass. Dr.

Onyema ordered an ultrasound and decided to simply

monitor the situation because the mass had not changed

in size since the last ultrasound in the 1980s and because

Crutcher was not in pain. Crutcher returned to Dr.

Onyema approximately five years later complaining of

pain in her lower right side for six months. An ultrasound

and CT scan revealed that the mass had not changed in

size or location but Dr. Onyema discussed surgery with

Crutcher because the mass had become symptomatic. Dr.

Onyema’s plan for surgery was to examine the mass

laparoscopically to determine if it was fibroid or benign. If

he found the mass was fibroid or benign, he intended to

do nothing further. If the mass involved the ovary, he

planned to remove it because he believed that for a woman

Crutcher’s age (she was 66), any mass involving the ovary

was presumed malignant until proven otherwise. Dr.

Onyema discussed the various risks of the surgery with

Crutcher and she decided to proceed with the surgery.

On October 2, 1997, Crutcher underwent surgery at

Mount Sinai Hospital. Dr. Onyema was assisted by Dr.

Gazala Siddiqui, a first year resident. Dr. Onyema began

with the laparoscopic procedure, which involved inserting

a scope or camera into the abdomen. He encountered dense

adhesions which prevented him from seeing the pelvic

organs with the scope so he switched to an open pro-

cedure. For the open procedure, third year resident Dr.

Jennifer Moran joined the surgical team. In order to reach

and remove the mass, Dr. Onyema used blunt dissection of

the adhesions, separating them mainly by hand. He

removed the mass, measuring six to seven centimeters,

and sent it to pathology for analysis. The pathologist later

determined the mass was benign. Dr. Siddiqui wrote

orders for Crutcher’s care immediately after the surgery

and was the first doctor to examine her the next morning.

Dr. Siddiqui heard crackles at the base of Crutcher’s lungs,

16 No. 05-1823

a finding that is sometimes seen after surgery because

patients do not breathe deeply due to incision pain. Dr.

Siddiqui ordered a device to help Crutcher breathe more

deeply and ordered a urinalysis to determine the source

of a slight fever Crutcher had the prior night. Dr. Onyema

spoke with Dr. Siddiqui that morning and then examined

Crutcher himself. Both doctors noted that Crutcher’s

abdomen was soft and non-tender and that she had

reduced bowel sounds. These were considered normal

findings in the first day following surgery. Dr. Onyema

decided that Dr. Siddiqui’s orders were adequate. Dr.

Siddiqui ordered additional antibiotics later that day.

The next day, because Crutcher’s fever had increased,

Dr. Bruce Smith, the senior obstetrics/gynecology resident

on call, was asked to evaluate Crutcher. He noted that she

had the symptoms of ileus, an obstruction of the bowel. He

also observed crackles in both lungs, a rapid heartbeat

and rapid breathing. A lab report showed an elevated

white blood cell count. Dr. Smith’s plan was to rule out

pneumonia with a chest x-ray, to rule out a small bowel

obstruction with abdominal x-rays,6 and to rule out a post-

operative infection. He also thought Crutcher should

receive additional antibiotics and that if bowel obstruction

was ruled out, she should receive a bowel motility drug.

Dr. Smith conveyed his assessment and plan to Dr.

Onyema who agreed to the plan. As the morning pro-

gressed, Crutcher complained of shortness of breath and

abdominal pain, and displayed some confusion. She

continued to have crackles in her lungs. The chest x-ray

indicated pneumonia and Crutcher was then given triple

antibiotics. By 4 p.m., Crutcher said she was feeling better,

6

The abdominal x-rays showed there was no free air in

Crutcher’s abdomen, a finding which apparently influenced

subsequent actions by her physicians.

No. 05-1823 17

no longer had shortness of breath, and felt like she needed

to move her bowels but could not do so.

The next morning, October 5th, Crutcher had a bowel

movement and was given respiratory therapy to help her

clear fluid from her lungs and breathe more easily. Her

fever had gone down to 100°. Dr. Smith examined Crutcher

that morning and found that she still had crackles in

both lungs, was still breathing rapidly and had a rapid

heartbeat. She also had a slight, bloody discharge from her

surgical wound (which was otherwise intact) and abdomi-

nal distention. Dr. Smith noted that Crutcher had pneumo-

nia. He also assessed her for ileus, noting that she had

moved her bowels and passed gas, but also had decreased

bowel sounds and abdominal distention. He assessed her

for wound infection and noted she was on triple antibiotics.

His plan was to repeat the chest x-ray and obtain an

infectious disease consult.

Dr. Moran also saw Crutcher that day after receiving a

report on her condition from Dr. Smith. Crutcher told Dr.

Moran she was feeling somewhat better but Dr. Moran

noted that her breathing was labored, her blood pressure

was elevated, her heart and respiratory rates were ele-

vated, and she was using extra muscles from her chest

and neck to breathe. Dr. Moran noted abnormal sounds

in the lungs and poor air entry. Dr. Moran also observed

the Crutcher’s abdomen exhibited a small amount of

oozing, redness and bruising. Dr. Moran reviewed

Crutcher’s latest tests, which showed a significantly

elevated white blood cell count and pulmonary edema,

among other things. Dr. Moran concluded that Crutcher

had pulmonary edema with pneumonia. She planned to

continue administering oxygen, prescribed a diuretic, and

continued the triple antibiotics. Her notes indicated she

intended to attempt to contact the infectious disease

specialist again, planned to ask her senior resident to see

Crutcher, and then intended to speak to Dr. Onyema again

18 No. 05-1823

to get his input. After Dr. Moran discussed Crutcher’s

condition with Dr. Onyema, he cancelled the infectious

disease consult and directed Dr. Moran to consult the

pulmonary service instead. Dr. Moran called in Dr. Joseph

Rosman, a critical care/pulmonologist employed by Sinai

for an evaluation of Crutcher’s condition. Dr. Rosman

concluded that Crutcher was suffering from Acute Respira-

tory Distress Syndrome (“ARDS”) and he approved

Crutcher’s transfer to the medical intensive care unit

(“MICU”) where the MICU fellow, residents and attending

staff took over her care. He suspected the ARDS was

caused by sepsis which was brought about by the pneumo-

nia.

Dr. Rosman was aware that the abdominal x-rays had

revealed no free air in Crutcher’s abdomen. Free air would

have been a strong indication of a bowel perforation which

would have been another source of infection leading to

Crutcher’s mounting medical problems. Once in the MICU,

Crutcher was placed on a ventilator to assist her breath-

ing. Over the next few days, Crutcher’s condition deterio-

rated. On October 6th, Dr. Moran examined Crutcher and

found she had a soft, non-tender, non-distended abdomen,

with positive bowel sounds, a clean and dry incision, and

reduced redness and swelling at the incision site. A few

hours later when Dr. Onyema examined Crutcher, her

abdomen was slightly distended, her incision was dry, and

bowel sounds were present. The next day, her abdomen

was more distended but bowel sounds were still present.

On the afternoon of October 7th, Crutcher began having

problems with her organs. Dr. Onyema called in a cardiolo-

gist for a consult. The cardiologist noted that Crutcher’s

abdomen was rigid and distended and recommended that

a surgical re-exploration be done. The MICU fellow ordered

a CT scan for October 8th to see if Crutcher had an

infection in her abdomen.

No. 05-1823 19

On October 9th, Dr. Rosman examined Crutcher and

noticed that the ordered CT scan had not yet been per-

formed. Because Crutcher’s abdomen was distended, he

called the radiologists and urged them to perform the

CT scan quickly. The scan showed a collection of fluid and

two “pockets” in the abdomen. Dr. Rosman arranged to

have a catheter inserted in Crutcher’s abdomen to drain

the fluid. The catheter was placed on October 10th and

revealed that Crutcher had an abscess, a collection of

infected fluid in her abdomen. After draining this fluid,

Crutcher’s condition improved slightly over the next few

days but then the drainage from the catheter began to

increase. On October 13th, Dr. Onyema requested an

infectious disease consult and on October 15th, he re-

quested a general surgical consult. Dr. Sasa Korner

performed exploratory surgery on October 16th and found

a hole in Crutcher’s small bowel which he repaired by

removing fifty-five centimeters of the bowel. A patholo-

gist’s analysis of the removed tissue showed two holes.

Unfortunately, Crutcher’s condition continued to deterio-

rate and she died on November 13th of multi-system organ

failure, which in turn was attributed to the perforated

bowel.

Crutcher’s daughter, Irma Alexander, filed a malprac-

tice action in the Circuit Court of Cook County against

Mount Sinai Hospital Medical Center of Chicago and Sinai

Health System d/b/a Mount Sinai Medical Center of

Chicago (“Mount Sinai Hospital”), Sinai Medical Group

(“Sinai”), Godwin Onyema and Joseph Rosman. We have

already noted the path the litigation took to federal court.

Under the FTCA, the United States was substituted for

Dr. Onyema. The case against the United States was

tried to the judge at the same time the case against the

other defendants was tried to a jury. At the close of the

plaintiff ’s case, Sinai, Mount Sinai Hospital and Dr.

Rosman moved for a directed verdict. The court denied

20 No. 05-1823

the motion as to Dr. Rosman but granted it in favor of

Sinai (except to the extent that Sinai was vicariously liable

for Dr. Rosman’s conduct as his employer) and in favor

of Mount Sinai Hospital. The jury returned a verdict in

favor of the remaining defendants and the court entered

judgment in favor of the United States.

B.

We turn first to the directed verdict in favor of Mount

Sinai Hospital. The parties agreed that Mount Sinai

Hospital was liable only through the actions of its employ-

ees, Dr. Moran, Dr. Siddiqui and Dr. Smith.7 Recall that

Dr. Moran was a third-year resident, Dr. Siddiqui was a

first-year resident and Dr. Smith was a senior (fourth-

year) resident at the time of these events. At trial, Dr.

Ronald Berman testified as an expert for Alexander. Dr.

Berman opined that Crutcher developed ARDS by October

5th. He testified that the chances of Crutcher surviving

ARDS at that point were 50-60% and that those odds

decreased as time passed. Dr. Berman testified that “[t]his

was Dr. Onyema’s patient. He is in charge.” R. 128-5, at

711. In his testimony regarding Dr. Onyema, Dr. Berman

criticized Dr. Onyema for relying on telephone reports

from residents rather than coming in to see the patient

himself when she was apparently more ill than would be

expected following surgery. He opined that the residents

“have less experience; and, the more junior the resident,

the less you expect.” R. 128-5, at 714. The standard of

care for residents, Dr. Berman stated, was to know the

indications and contra-indications to any surgical proce-

dure in which they participate, to know the complications

7

Dr. Rosman was employed by Sinai and not by Mount Sinai

Hospital, which was a separate and distinct corporation.

No. 05-1823 21

of those surgical procedures, to be able to diagnose those

complications if the patient showed signs of them, and to

treat those complications in a timely fashion. R. 128-5, at

720. When Dr. Berman opined that the residents should

have requested a surgical consult on October 5th, Mount

Sinai Hospital objected that Dr. Berman had not previ-

ously disclosed this opinion and that he was not distin-

guishing between the residents who had varying levels of

experience and varying contacts with Crutcher after her

surgery. The court struck Dr. Berman’s testimony and

directed plaintiff ’s counsel to be more careful in question-

ing Dr. Berman so that it would be clear which resident

was involved in the particular criticism. Dr. Berman

subsequently testified that Dr. Moran deviated from the

applicable standard of care by not requesting a surgical

consult on October 5th and that Dr. Siddiqui violated the

standard of care by not ordering a surgical consult on

October 6th. R. 128-5, at 724. Plaintiff ’s counsel then

posed the following question: “And with regard to the

requirement that Dr. Smith order surgical consultation on

the 4th or the 5th, do you hold such an opinion?” Plain-

tiff ’s counsel objected to this question (“Objection, your

Honor. The same objection.”) because Dr. Berman had not

previously disclosed an opinion that Dr. Smith should have

ordered a surgical consult on October 4th. The court

sustained the objection. Plaintiff ’s counsel did not narrow

the question to the October 5th time frame and instead

asked other questions. The court continued to sustain

objections to broadly worded questions and broadly

worded responses from Dr. Berman. The effect of those

rulings was that Dr. Berman essentially offered no fur-

ther admissible critique of the residents.

On cross-examination, Dr. Berman conceded that Drs.

Moran and Siddiqui did nothing wrong during the surgery

itself. He also testified that neither Dr. Moran nor Dr.

Smith violated the standard of care by failing to diagnose

22 No. 05-1823

ARDS. When asked about Crutcher’s chances for survival

after October 5th, Dr. Berman could state only that once

Crutcher was diagnosed with ARDS, her chances of

survival were 50-60% and decreasing on an unknown scale

each day. Dr. Berman acknowledged that there was no way

of quantifying the daily decrease in Crutcher’s chances for

survival and that he could not say whether her chances on

October 6th or later would have been 50% or 1%. Finally,

Dr. Berman testified that he could not predict whether a

surgeon called in on October 5th would have recommended

surgery given Crutcher’s precarious medical condition at

that time. R. 128-5, at 799-801.

At the close of the plaintiff ’s case, Mount Sinai Hospital

moved for a directed verdict under Federal Rule of Civil

Procedure 50. Counsel for the hospital pointed out that Dr.

Siddiqui was not at the hospital on October 6th, the only

day for which Dr. Berman criticized her performance.

Counsel also noted that there was no admissible opinion

given regarding Dr. Smith’s performance and that the

only criticism remaining was Dr. Berman’s opinion that

Dr. Moran should have ordered a surgical consult on

October 5th. Because Dr. Berman could not predict

whether a surgical consult would have resulted in surgery

or whether either a consult or surgery would have im-

proved Crutcher’s chances of survival, Mount Sinai argued

that the case against Dr. Moran was purely speculative.

The district court granted the motion, ruling that no

reasonable jury could find that the residents violated the

applicable standard of care. The court found that there was

no basis for imposing liability on the residents for failing

to go over Dr. Onyema’s head to order a surgical consult.8

8

Recall that Dr. Onyema countermanded Dr. Moran’s call for

an infectious disease consult on October 5th and instead di-

rected her to consult a pulmonary care specialist. As Alexander’s

(continued...)

No. 05-1823 23

The court noted that Dr. Berman’s criticism of Drs.

Siddiqui and Smith addressed their conduct on days that

they were not physically present at the hospital, which the

court characterized as “very, very shoddy testimony.” R.

128-5, at 851-2. The court found no reasonable jury would

impose liability on Dr. Moran for failing to call for a

surgical consult on October 5th because she was a junior

resident reporting to Dr. Onyema who did not himself

order such a consult, and because by that time, Crutcher

had developed ARDS and had only a 50-60% chance of

survival no matter what Dr. Moran did.

Alexander complains that the court improperly pre-

cluded Dr. Berman from testifying that Dr. Smith deviated

from the applicable standard of care by failing to order a

surgical consult on October 5th. Alexander also argues that

the district court applied the wrong standard when

it directed the verdict in favor of the hospital. We review

the district court’s decision to restrict an expert’s testi-

mony as a sanction for failure to disclose the information

in discovery for abuse of discretion. Hoffman v. Caterpillar,

Inc., 368 F.3d 709, 714 (7th Cir. 2004); Sherrod v. Lingle,

223 F.3d 605, 610 (7th Cir. 2000). For a state law claim, we

apply the state’s standard of review to the district court’s

decision to grant a directed verdict. Consolidated Bearings

Co. v. Ehret-Krohn Corp., 913 F.2d 1224, 1227 (7th Cir.

1990); Mele v. Sherman Hosp., 838 F.2d 923, 924 (7th Cir.

1988). Alexander’s malpractice claims against Mount Sinai

Hospital were governed by Illinois law. Illinois case law

provides that verdicts should be directed “only in those

cases in which all of the evidence, when viewed in its

aspect most favorable to the opponent, so overwhelmingly

8

(...continued)

own expert testified, Crutcher was Dr. Onyema’s patient and

Dr. Onyema was “in charge.”

24 No. 05-1823

favors movant that no contrary verdict based on that

evidence could ever stand.” Pedrick v. Peoria & Eastern

R.R. Co., 229 N.E.2d 504, 513-14 (Ill. 1967). Illinois law

also requires that we review the trial court’s directed

verdict de novo. Snelson v. Kamm, 787 N.E.2d 796, 819 (Ill.

2003); Suzik v. Sea-Land Corp., 89 F.3d 345, 348 (7th Cir.

1996).

We begin with the district court’s decision to sustain the

objection to the question about Dr. Smith’s duty to order a

surgical consult on October 4th and 5th. Alexander is

correct that Dr. Berman had previously disclosed an

opinion that Dr. Smith should have ordered a surgical

consult on October 5th. But prior to trial Dr. Berman also

opined that no one breached an applicable standard of

care by failing to call for a surgical consult before October

5th. When counsel for Mount Sinai objected to the ques-

tion, he was objecting to the reference to October 4th. The

court sustained the objection, and counsel for Alexander

tried a few more times to elicit the relevant information

but continued to ask questions that were non-specific as to

particular dates and particular defendants. After addi-

tional objections, the court called a sidebar where defense

counsel explained that he objected because Dr. Berman did

not criticize the residents for certain actions or failures

to act before October 5th in opinions expressed prior to

trial. Thus, testimony that the residents breached the

standard of care before October 5th constituted undis-

closed opinions. The court suggested that Alexander’s

counsel use Dr. Berman’s deposition testimony and

“accurately phrase a question with what you know to be

his opinion.” R. 128-5, at 727. When trial resumed, Alexan-

der’s counsel failed to elicit an opinion from Dr. Berman

about Dr. Smith’s obligation to order a surgical consult on

October 5th. We see no abuse of discretion in the district

court’s rulings limiting Dr. Berman’s testimony. Contrary

to Alexander’s claim, the court did not preclude Dr.

No. 05-1823 25

Berman from testifying about Dr. Smith’s conduct on

October 5th. Rather, counsel failed to ask a non-objection-

able question to elicit this information. Instead, counsel

asked broad questions and Dr. Berman tended to answer

in a non-specific manner that was inconsistent with or

broader than his deposition testimony. The court was

within its discretion to restrict Dr. Berman’s testimony to

previously disclosed opinions.

The directed verdict is a closer question but after care-

ful review of the trial transcript and the relevant Illinois

cases, we conclude that the district court was correct to

direct the verdict in favor of Mount Sinai Hospital. The

court sustained a number of objections to Dr. Berman’s

testimony about the residents; the evidence which survived

was exceedingly thin. Dr. Berman testified Dr. Moran

should have ordered a surgical consult on October 5th and

that Dr. Siddiqui should have ordered a surgical consult on

October 6th. Dr. Siddiqui, however, did not see or treat

Crutcher on October 6th. As we have already noted, there

was no admissible evidence regarding a breach of the

standard of care by Dr. Smith. Thus, the only evidence of

a breach of the standard of care was Dr. Berman’s testi-

mony that Dr. Moran should have called for a surgical

consult on October 5th. We must view the evidence in the

light most favorable to the opponent of the motion for a

directed verdict and so we must assume for the purposes

of this analysis that Dr. Moran, a third year resident,

breached the standard of care by failing to request a

surgical consult.9 At the time of the Rule 50 motion,

9

We emphasize that this is an assumption necessitated by the

legal posture of the case. Given that no senior physician thought

to order a surgical consult at that time, given that Dr. Onyema

countermanded Dr. Moran’s orders and had the ultimate

authority over the residents, and given that Crutcher’s precari-

(continued...)

26 No. 05-1823

counsel for the hospital argued that Alexander failed to

show that the outcome would have been any different if Dr.

Moran had called for a surgical consult on October 5th. In

other words, Alexander failed to present evidence that this

breach was a proximate cause of Crutcher’s injury. First,

Alexander presented no evidence that the surgeon would

have done anything differently if he had been called in on

October 5th. Second, Dr. Berman testified that he could

not say with certainty what Crutcher’s chances of survival

were after October 5th when she was initially diagnosed

with ARDS. Indeed he testified that her odds of survival

were 50-60% at best and that they decreased in an un-

known percentage each day after that. Thus, the effect of

calling in a surgeon on October 5th versus on some other

day was unknown with any certainty. Defense counsel

argued that it would therefore be speculative to conclude

that a surgical consult on October 5th would have influ-

enced the outcome. Such speculation could not meet the

standards for proximate cause, the hospital argued.

To sustain a claim against Mount Sinai Hospital based

on vicarious liability for the conduct of its residents,

Alexander was obliged “to present expert testimony to

establish the standard of care and that its breach was the

cause of the plaintiff ’s injury.” Snelson, 787 N.E.2d at 819.

Alexander arguably provided sufficient evidence on the

standard of care and the breach of that standard through

Dr. Berman’s testimony. The issue before us is whether

she provided adequate evidence that the breach was a

cause of Crutcher’s injuries. This is where Alexander’s case

fails. Dr. Berman testified that he could not predict

whether a surgeon called in on October 5th would have

9

(...continued)

ous condition weighed against surgical intervention, the jury

may well have concluded that Dr. Moran did not breach the

standard of care.

No. 05-1823 27

recommended surgery given Crutcher’s precarious medical

condition at that time. R. 128-5, at 799-801. Alexander

presented no evidence from a surgeon or other expert that

a surgeon would have performed surgery on Crutcher

sooner or treated Crutcher differently had the surgeon

been called in for a consult on October 5th. Moreover,

Dr. Berman acknowledged that there was no way of

quantifying the daily decrease in Crutcher’s chances for

survival and that he could not say whether her chances

on October 6th or later would have been 50% or 1%. Thus,

there was no evidence that Dr. Moran’s delay in calling for

a surgical consult in any way contributed to Crutcher’s

injury. See Snelson, 787 N.E.2d at 819 (except in very

simple cases, expert testimony is needed to establish that

a breach of the standard of care was the proximate cause

of the plaintiff ’s injury).

Alexander’s case is analogous to Snelson and to Aguilera

v. Mount Sinai Hosp. Med. Ctr., 691 N.E.2d 1 (Ill. App. Ct.

1997), as modified on denial of reh’g (Jan. 21, 1998). In

Snelson, the plaintiff sued a hospital for a breach in the

standard of care by nurses employed by the hospital.

Snelson, 787 N.E.2d at 818-23. During a diagnostic test,

Snelson had suffered an injury to the artery supply-

ing blood to his small intestine. The doctor performing the

test was unaware that he had caused the injury and

Snelson was admitted to the hospital under the care of Dr.

Kamm, the physician who had ordered the test. Snelson

experienced unusual symptoms in the hours following the

test including abdominal pain and bloody stool. Dr. Kamm

examined Snelson and then left him in the care of nurses

for the evening with instructions to closely monitor his

condition. The nurses failed to inform Dr. Kamm that

Snelson experienced additional pain after the doctor left

for the evening. The next morning, after additional tests,

Dr. Kamm performed emergency surgery and discovered

that 95% of Snelson’s small intestine was dead due to

28 No. 05-1823

lack of circulation. Dr. Kamm removed the dead intestinal

tissue, leaving Snelson with virtually no small intestine.

This loss caused serious, lifelong medical consequences

for Snelson.

Dr. Kamm had been aware of Snelson’s pain before he

left, however, and Snelson presented no evidence that Dr.

Kamm would have performed surgery earlier if the nurses

had informed him of Snelson’s continued pain. Thus, the

court held that the nurses’ conduct could not have been the

proximate cause of Snelson’s injury even if the nurses

deviated from the standard of care by failing to advise Dr.

Kamm of Snelson’s pain. Snelson, 787 N.E.2d at 820. The

court noted that Snelson could have presented expert

testimony as to what a reasonably qualified physician

would do with the undisclosed information and whether

the failure to disclose the information was a proximate

cause of the plaintiff ’s injury. Such testimony could

discredit a doctor’s assertion that the nurses’ omission

did not affect his decisionmaking. 787 N.E.2d at 821.

In Aguilera, the plaintiff arrived in the hospital’s

emergency room complaining of numbness on one side of

his body. He was not given a CT scan for several hours.

That scan ultimately revealed a massive brain hemor-

rhage. The plaintiff subsequently lapsed into a coma and

died. In a suit against the hospital, the plaintiff alleged

that the delay in the CT scan was a breach of the standard

of care that led to his death. The plaintiff ’s expert testified

that if the scan had been completed earlier, a neurosur-

geon would have been consulted and surgery could have

been attempted before the bleeding caused the irreversible

damage that led to the plaintiff ’s death. 691 N.E.2d at 3-6.

The plaintiff ’s experts conceded that they did not know

if a neurosurgeon would have in fact performed surgery if

the CT scan had been completed earlier. Both experts

testified that they would defer to a neurosurgeon’s opinion

as to how to proceed. The neurosurgeons who testified

No. 05-1823 29

agreed that even if the scan had been performed earlier,

they were unlikely to have recommended surgery because

of the location of the bleeding deep within the brain. The

court held that the “absence of expert testimony that,

under the appropriate standard of care, an analysis of an

earlier CT scan would have led to surgical intervention or

other treatment that may have contributed to the dece-

dent’s recovery creates a gap in the evidence of proximate

cause fatal to plaintiff ’s case.” Aguilera, 691 N.E.2d at 7.

As in Snelson and Aguilera, Alexander failed to produce

any evidence that Dr. Moran’s failure to order a surgical

consult was a proximate cause of Crutcher’s injury. See

also Holton v. Memorial Hosp., 679 N.E.2d 1202, 1211-13

(Ill. 1997) (evidence which shows to a reasonable medical

certainty that negligent delay in diagnosis or treatment

lessened the effectiveness of treatment is sufficient to show

proximate cause). Without evidence that the resident’s

actions proximately caused Crutcher’s injury, the court

was correct to grant judgment in favor of the hospital.

Aguilera, 691 N.E.2d at 6 (where there is no factual

support for an expert’s conclusions, the conclusions alone

do not create a question of fact). We affirm the grant of

judgment in favor of Mount Sinai Hospital.

C.

Alexander’s remaining arguments fare no better. She

asserts that the court committed reversible error when it

allowed Dr. Craig Winkel, an expert for the United States,

to testify that Crutcher’s bowel may have been perforated

during the October 16th surgery or that it may have been a

delayed perforation rather than a perforation that occurred

during the original October 2nd surgery. Early in his

testimony, Dr. Winkel stated that he disagreed with Dr.

Berman’s opinion that Dr. Onyema breached the standard

of care by perforating Crutcher’s bowel during the October

30 No. 05-1823

2nd surgery. Dr. Winkel testified, without objection, that

it was not clear to him that Dr. Onyema did in fact

perforate the intestine. He also stated that perforating the

bowel was a known complication which did not in and of

itself indicate substandard care. R. 128-7, at 915-16. He

later testified without objection that he was uncertain

when the perforation occurred. R. 128-7, at 925. It was

within the trial court’s discretion to allow Dr. Winkel to

testify to opinions that may have differed from his previ-

ously disclosed opinions. Hoffman, 368 F.3d at 714. On

cross-examination, counsel for Alexander was able to

question Dr. Winkel about his prior deposition testimony.

Alexander’s counsel demonstrated that Dr. Winkel had

previously testified that, in his opinion, the injury to the

bowel “probably occurred” during the October 2nd surgery

and was caused by the insertion of the trocar or needle

used to perform the laparoscopy. R. 128-7, at 962. Dr.

Winkel’s testimony was not necessarily inconsistent with

his prior opinion; in each instance he spoke of probabilities

that did not conclusively exclude other scenarios. More-

over, most of this testimony came in without objection. Any

harm caused by the district court allowing Dr. Winkel to

testify that (1) he did not know for certain when the

perforations occurred, and (2) they may have occurred

during the October 16th surgery or on a delayed basis, was

cured by the thorough cross-examination by Alexander’s

counsel.

Alexander also complains that the trial court improperly

overruled her objection to a question during the cross-

examination of Alexander’s other expert witness, Dr. Klotz.

Defense counsel asked Dr. Klotz if he was aware that Dr.

Moran had irrigated the abdomen to check for leaks in the

bowel during the October 2nd surgery. Dr. Moran had

testified that was her usual procedure but arguably had

not testified that she had performed this irrigation in

Crutcher’s surgery on October 2nd. The court allowed the

No. 05-1823 31

question, ruling “She testified on that topic. And the jury

has to recall whether that is what she said. My sense is

that that is what was, essentially, described. So, I will

permit the question to be put. But whether that was the

exact testimony will be for the jury to decide.” R. 128-4, at

596-97. The court made clear that it was the jury’s recol-

lection that should prevail.10 In light of that directive,

given twice, that it was for the jury to recall the evidence,

we find no abuse of discretion and no prejudice from the

remark. See United States v. Brisk, 171 F.3d 514, 524 (7th

Cir. 1999) (judge’s admonishment to jury to rely on its own

recollection was sufficient to mitigate any possible preju-

dice from comments not supported by the evidence); United

States v. Dominguez, 835 F.2d 694, 700 (7th Cir. 1987)

(misstatement of the evidence does not necessarily preju-

dice the jury’s ability to weigh the evidence fairly when the

court immediately instructs the jury that it is the jury’s

province to recall what the evidence reflected).

Finally, Alexander complains that she was unduly

prejudiced by remarks from defense counsel and from the

court. In opening statements, counsel for Dr. Rosman

sought to discredit Alexander’s experts, particularly Dr.

Berman. Counsel stated, “Dr. Berman practiced for many

years in Hawaii; retired in 1998; and, since 2002, has been

in San Diego doing—well about 80 percent of his experi-

ence in the last seven years has been doing 20 to 40

abortions per week at a clinic.” R. 128-1, at 68. The court

overruled Alexander’s immediate objection. Alexander

then moved for a mistrial on the ground that the remark

was irrelevant, immaterial, highly prejudicial and inflam-

matory. R. 128-2, at 78. The court denied the motion,

10

In explaining its reasoning for the ruling, the court may have

inadvertently endorsed a particular view of the evidence. But

in light of the repeated instructions to the jury to rely on its

own recollection, we find the court’s statement harmless.

32 No. 05-1823

finding that the background of expert witnesses is highly

relevant to their claimed expertise. Before Dr. Berman

testified, Alexander brought a motion in limine to exclude

references to abortion. The court granted the motion in

part, directing the parties to use the word “terminations”

rather than abortions in describing Dr. Berman’s recent

practice. R. 128-5, at 677-78.

A trial judge has broad discretion in determining

whether an incident at trial is so serious as to warrant a

mistrial. Testa v. Village of Mundelein, Ill., 89 F.3d 443,

445 (7th Cir. 1996). Alexander’s counsel objected broadly

to the reference to abortions. The court found, and we

agree, that the expert’s current work experience is highly

relevant to his credentials. Alexander was aware before

trial that Dr. Berman’s recent practice focused in large

part on family planning, contraception and pregnancy

terminations and yet Alexander failed to move in limine

before trial to address this issue. Alexander could have

moved before trial to preclude the use of the word “abor-

tion” and instead require counsel to refer to “termina-

tions,” the term the court ultimately approved for the

testimony of Dr. Berman. Instead, Alexander objected

broadly to any reference to this part of Dr. Berman’s

practice no matter what term was used. The court did not

abuse its discretion in allowing defense counsel to mention

this part of Dr. Berman’s current practice because it was

highly relevant to his credentials as an expert. Once

Alexander asked the court to limit the references to a less

charged term, the court agreed and prohibited defense

counsel from again using the word “abortion.” We find no

abuse of discretion in the court’s handling of the issue, and

note that Alexander’s counsel could have avoided the

problem entirely by filing the motion in limine before trial

began. We have considered the other remarks to which

Alexander has objected, including remarks by both defense

counsel and the court, and find that none warrants a

new trial.

No. 05-1823 33

III.

For the reasons stated, we find that the district court

properly exercised jurisdiction over the case, and we affirm

the judgment in every respect.

AFFIRMED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—4-24-07