Griffin, Lisa v. Foley, Robert K.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2689

L ISA G RIFFIN and M ICHAEL W. G RIFFIN,

Plaintiffs-Appellants,

v.

R OBERT K. F OLEY, M.D.,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Evansville Division.

No. 05 C 15—Richard L. Young, Judge.

____________

A RGUED F EBRUARY 28, 2008—D ECIDED S EPTEMBER 4, 2008

____________

Before F LAUM, M ANION, and E VANS, Circuit Judges.

M ANION, Circuit Judge. As a result of a car accident, Lisa

Griffin had to undergo back surgery, which Dr. Robert

Foley performed. After complications arose from the

surgery, Lisa and her husband Michael filed this diversity

suit against Foley in the district court alleging medical

malpractice. The case went to trial, and a jury returned

a verdict in favor of Foley. The Griffins appeal, raising

2 No. 07-2689

several challenges to the trial court’s procedural handling

of their case. We affirm.

I.

On June 11, 1994, while traveling through Georgia, the

Griffins’ minivan was struck in the rear by a pickup truck.

As a result of the collision, Lisa Griffin (“Lisa”) sustained

severe injuries, including a burst fracture1 at the L1 verte-

bra. Lisa was flown to Evansville, Indiana, where, on

June 14, 1994, orthopedic surgeon Dr. Robert Foley per-

formed both a laminectomy 2 and a spinal fusion on

her back. During the operation, Foley used an internal

fixation device consisting of rods and hooks to keep Lisa’s

back in place. He then combined the bone he took from

Lisa’s lamina with coralline hydroxyapatite, a bone graft

substitute made of coral reef that goes by the trade

name Pro Osteon. Although the Food and Drug Adminis-

tration had approved Pro Osteon as a bone graft sub-

stitute to fill holes in bone, the FDA had not specifically

1

A burst fracture, or axial compression, is a “fracture of a

vertebra by excessive vertical force, so that pieces of it move

out in horizontal directions, often injuring the spinal cord.”

Dorland’s Illustrated Med. Dictionary 708 (29th ed. 2000).

2

A laminectomy is the surgical removal of one or more pieces

of bone from the lamina, a part of the posterior structure of a

vertebra, in order to relieve the pain caused by pressure on a

nerve being compressed by bones in the spine. Am. Med. Ass’n,

Complete Med. Encyclopedia 768 (2003) (hereinafter “Encyclo-

pedia”).

No. 07-2689 3

approved it for use as a bone graft extender in spinal

fusions. Foley placed the mixture at the fracture site as a

bone graft and completed the surgery.

Foley continued to see Lisa in follow-up visits after the

surgery. While at trial the parties disputed the relative

success of the surgery, it was undisputed that, in October

1994, x-rays of Lisa’s back showed increased kyphosis 3

in her spine, a recognized complication of spinal fusion

surgery. The kyphosis made the rods and hooks from

the fixation device conspicuous underneath her skin, so

on May 16, 1995, Foley performed a second surgery on

Lisa to remove the internal fixation device. However, a

later x-ray taken in March 1996 showed further kyphosis

in Lisa’s spine. At this point, Foley recommended addi-

tional surgery—the parties disputed the nature of the

surgery recommended—which Lisa declined. Later on, the

failure of the back fusion to achieve a union (another

recognized complication of fusion surgery) became evi-

dent. When Foley ought to have been aware of that fact

and how he should have reacted were vigorously con-

tested at trial. As a result of her back, Lisa is now perma-

nently disabled and unable to work.

The Griffins initiated this medical malpractice suit

against Foley on June 11, 1998. Pursuant to Indiana law,4

they first filed a proposed complaint with the Indiana

Department of Insurance alleging that Foley was

3

Kyphosis is an “abnormal and excessive outward curvature

of the vertebrae in the upper spine.” Encyclopedia 764.

4

See Ind. Code § 34-18-8-4.

4 No. 07-2689

negligent because, among other things, he used Pro Osteon

as a bone graft substitute in Lisa’s spine surgery when it

was not FDA-approved for that use and had no

therapeutic benefit as a bone graft substitute in spinal

fusion surgery. The Department of Insurance assembled

a medical review panel to review the case.5 After the case

languished before the panel for over six years, the panel

issued a one-sentence opinion: “The evidence does not

support the conclusion that the defendant failed to meet

the applicable standard of care as charged in the com-

plaint.” 6

The Griffins then took their case to federal court in

January 2005. Trial was scheduled for October 10, 2006, and

the case management plan approved by both parties and

the district court gave the Griffins until April 18, 2006,

and Foley 60 days thereafter, to submit the expert

witness reports required by Federal Rule of Civil Proce-

dure 26.7 On April 18, 2006, the Griffins filed Rule 26

5

See Ind. Code § 34-18-10-1 et seq.

6

Under Indiana law, an opinion by a medical review panelist

is not conclusive of the issue of liability. Ind. Code § 34-18-10-23.

However, that statute also provides that “either party, at the

party’s cost, has the right to call any member of the medical

review panel as a witness. If called, a witness shall appear

and testify.” Id.

7

Federal Rule of Civil Procedure 26(a)(2)(A) requires a party

to “disclose to the other parties the identity of any witness

it may use at trial to present evidence under Federal Rule of

(continued...)

No. 07-2689 5

reports for their experts: Dr. Lawrence Weis, Dr. Robert

Lieberson, Dr. Timothy Lalk, and Professor John Navin.

After the Griffins filed their expert witness reports, Foley

noticed Navin’s deposition for April 28, 2006. Three days

prior to the deposition, the Griffins’ counsel served notice

that he would be videotaping Navin’s deposition for

purposes of trial. 8 In response, Foley filed a motion for a

protective order seeking to preserve the opportunity to

cross-examine Navin for purposes of trial at a later date.

In that motion, Foley asserted that the Griffins’ counsel

had refused to produce Navin at a later date to allow

the defense to cross-examine him for purposes of trial.

The magistrate judge assigned to the case granted

Foley’s motion, stating in its order that Navin must

appear for his previously noticed discovery deposition

7

(...continued)

Evidence 702, 703, or 705.” Along with the disclosure of the

identity of its experts, a party must also submit a written

report, “prepared and signed” by the expert, which contains

(among other things) “a complete statement of all opinions the

[expert] will express and the basis and reasons for them.” Fed.

R. Civ. P. 26(a)(2)(B). “Absent a stipulation or a court order,”

these expert disclosures must be made either 90 days before

trial or, “if the evidence is intended solely to contradict or

rebut evidence on the same subject matter identified by another

party under Rule 26(a)(2)(B),” 30 days after the other party’s

disclosure. Id. 26(a)(2)(C).

8

Federal Rule of Civil Procedure 30(b)(3)(A) allows for audio-

visual recording of a deposition. In addition, Rule 32(a)(4)

allows a party to use the deposition of a witness for any pur-

pose at trial if the court finds that the witness is “unavailable.”

6 No. 07-2689

and that, thereafter, the parties were free to examine or

cross-examine Navin at a later date for purposes of elicit-

ing trial testimony. The order also stated that Foley was

entitled to cross-examine the Griffins’ other experts prior

to trial after taking their discovery depositions. In a later

order expounding on its reasons for granting the

motion, the magistrate judge stated that it was “reasonable

to allow some period of time between discovery of all the

information used by an expert and the preparation of

cross-examination for trial.” 9

Foley then proceeded to take depositions of the Griffins’

retained experts for discovery purposes. The Griffins’

counsel provided notice that the evidentiary depositions

of Navin, Weis, and Lalk would immediately follow

their discovery depositions. When Foley’s counsel was

finished questioning in each of those three depositions, the

Griffins’ counsel conducted a direct examination of the

expert for use at trial. At a later date, Foley conducted a

follow-up deposition with each of those three experts

for purposes of evidentiary cross-examination before

trial. At the beginning of Weis’s follow-up deposition for

cross-examination, the Griffins’ counsel asked additional

questions of Weis intended to supplement his direct

examination, to which Foley’s counsel objected because

the Griffins had already passed the witness.

9

The magistrate judge also noted that there was a dispute as

to whether the Griffins had sufficiently complied with all of

Foley’s discovery requests with respect to the Griffins’ expert

witnesses, a dispute that the magistrate judge was unable to

resolve.

No. 07-2689 7

On June 19, 2006, the defense submitted its Rule 26

expert disclosures, but did not include any Rule 26 reports

from the members of the medical review panel. The

Griffins then filed a motion for sanctions under Fed. R. Civ.

P. 37 based, in part, on the absence of those Rule 26

reports. The magistrate judge concluded in an August 16,

2006, telephone conference that no sanctions were war-

ranted and that there was good cause to extend the dead-

line for expert disclosures, though Foley would have to

file Rule 26 reports from the members of the medical

review panel he wished to call at trial. The magistrate

judge stated that it did not expect those reports to be

completed until “about September 15 or so.” Aware that

allowing the disclosures so close to the October 10 trial

date had the potential to prejudice the Griffins, the magis-

trate judge was quick to remind counsel for the Griffins

that the trial date could be continued if necessary. In a

subsequent written order, the magistrate judge ordered

the defendant to produce disclosures for the medical

review panel “forthwith” while, at the same time, allowing

for the possibility that the trial date would have to be

moved “a short time” should the disclosures not be

immediately forthcoming.

While the motion for sanctions was pending, the

Griffins filed a motion on August 9 to bar testimony by

any defense expert that the use of coral reef as a bone

substitute met the standard of care. On August 25, the

same day the magistrate judge entered his written order on

the Griffins’ motion for sanctions, Foley requested an

extension of time to respond to the Griffins’ August 9

motion to bar expert testimony. Foley stated in that request

8 No. 07-2689

that he could not respond to that motion without first

submitting the Rule 26 expert reports for the medical

review panelists. While Foley admitted that he could

respond to the motion as it related to Dr. Rick Sasso,

his retained expert, he argued that to do so before the

completion of the medical review panelists’ expert reports

would lead to duplicative briefing. The court granted

Foley an extension “up to and including the date the

Court mandates Rule 26 reports be submitted for the

medical review panel members” to respond to the Griffins’

August 9 motion. Foley filed his response on September 27,

but the response did not encompass the members of the

medical review panel. Foley chose not to file Rule 26

reports from members of the medical review panel and

did not call them at trial.

On the same day Foley responded to the August 9

motion, he also filed several motions in limine, including

motions that sought to limit the expert testimony of the

Griffins’ retained experts. The Griffins moved to strike

Foley’s motions to limit expert testimony, but on October

4, 2006, the district court denied that motion and pro-

ceeded to decide all the pending motions in limine, grant-

ing some and denying others. The next day, the Griffins

filed a motion to continue the trial, which the district

court granted. The trial did not begin until April 6, 2007.

Prior to trial, the Griffins’ counsel provided notice of

their intent to utilize the “discovery” portions, that is, the

portions where Foley’s attorney had questioned the Grif-

fins’ experts, of the first depositions of Navin, Lalk, and

Weis at trial. Foley objected to the Griffins’ using that

No. 07-2689 9

testimony at trial, and the court ruled that those “discov-

ery” portions of the first depositions were not admissible

at trial. The court limited the Griffins to the “evidentiary”

portions of the first depositions, that is, to the latter

portion of those depositions where their attorney had

questioned their experts. The district court also ruled that

the questions the Griffins’ counsel asked Weis at the

beginning of the follow-up deposition were not admissible.

At trial, the “evidentiary” portions of those three wit-

nesses’ first depositions were played to the jury, followed

by the second follow-up depositions for cross-examination.

Other than Lieberson, the plaintiffs’ experts did not

otherwise testify at trial.

At the close of the evidence, the district court held an

informal instructions conference. Both parties tendered

proposed instructions. When trial resumed the next day,

the district court stated on the record that the parties had

agreed on a packet of final instructions. The district court

then provided the parties an opportunity to make a record

with respect to those instructions. The Griffins’ counsel

objected to an instruction on the statute of limitations.

The district court denied that objection and asked the

Griffins’ counsel if any further record needed to be made

on the instructions or verdict form. The Griffins’ counsel

replied, “Nothing on that, Your Honor.”

Prior to closing argument, the court read to the

jury—without objection—the jury instructions that had

been agreed upon by the parties. Instructions 20, 21, and 22

of the agreed instructions were very similar to the respec-

10 No. 07-2689

tive Indiana Pattern Jury Instructions,1 0 except that they

used the phrase “orthopaedic surgeon” where the pattern

instructions used “health care provider.” During closing

argument, Foley’s attorney repeated Instruction 22, which

reads: “In deciding whether an orthopaedic surgeon

exercised reasonable care and skill in the treatment of a

patient, you must consider only the expert testimony of

10

Instruction 20 stated:

An orthopaedic surgeon commits an act of malpractice

when the orthopaedic surgeon fails to exercise the degree of

reasonable care and skill in providing health care to a

patient as would a reasonably careful, skillful and prudent

orthopaedic surgeon acting under the same or similar

circumstances, or the failure to do something that the

orthopaedic surgeon should have done under the circum-

stances.

Instruction 21 stated:

Orthopaedic surgeons are allowed wide range in exer-

cising their judgment and discretion. They are not limited

to the most generally used methods of treatment.

When other approved methods of treatment are available,

the orthopaedic surgeon must exercise sound judgment

in choosing the treatment. If an orthopaedic surgeon

exercises sound judgment in selecting from a variety of

approved treatments and uses ordinary care and skill in

treating a patient, then the orthopaedic surgeon is not

responsible for the treatment’s lack of success.

The fact that other methods existed or that another

orthopaedic surgeon would have used a different treat-

ment does not establish malpractice.

No. 07-2689 11

qualified orthopaedic surgeons who are members of the

orthopaedic surgeon’s profession.” He then stated: “Dr.

Lieberson is not an orthopedic surgeon[ ], ladies and

gentlemen.” Counsel for the Griffins immediately objected

and a bench conference ensued. At the conference, the

district court denied the objection, but allowed the Grif-

fins’ attorney to argue during rebuttal that the court

recognized Lieberson (who was a neurosurgeon) as an

expert. After the bench conference concluded and upon

resuming his closing argument, Foley’s counsel stated

that Lieberson’s “testimony cannot be considered when

you’re analyzing whether Dr. Foley met the standard of

care. That is your instruction.” During his rebuttal, the

Griffins’ attorney told the jury the following:

Now, [Foley’s attorney] spent a big time telling you

about Dr. Lieberson, his not being qualified to render

an opinion because of the jury instruction, and you saw

me run up to the bench. That’s a mistake in the jury

instructions. Dr. Lieberson was recognized as an

expert by His Honor. His Honor said he’s qualified to

render opinions in this case. We asked both Dr. Weis

and Dr. Lieberson whether neurological surgeons and

orthopedic surgeons coalesce on the spine. That’s the

testimony here. Use your common sense.

After closing, the Griffins moved to have the instructions

amended to say “spinal surgeons” instead of “orthopaedic

surgeons.” The district court denied that motion, stating

that the “jury understands the Court’s instructions, and the

jury understands that the Court recognized Dr. Lieberson

as an expert and was able to give his opinion in this case.”

12 No. 07-2689

The jury returned a verdict in favor of Foley. The Griffins

moved for judgment as a matter of law or, in the alterna-

tive, for a new trial. The district court denied that motion.

Nineteen days after trial, the Griffins served a subpoena

on Sasso, Foley’s expert who testified at trial. The sub-

poena required that Sasso

1. Produce redacted copies of any and all operative

report(s) for repairing/fusing with internal fixation of

a thoraco-lumbar burst vertebral fracture using coral

reef a/k/a ProOsteon 500 without autologous iliac crest

bone graft in 1994 and/or 2006.

2. Produce redacted copies of any operative report at

any time since the year 1994 wherein a laminectomy

was performed during the course of repairing/fusing

with internal fixation of a thoraco-lumbar burst verte-

bral fracture.

3. Produce redacted copies of any operative report for

repairing/fusing with internal fixation of a thoraco-

lumbar burst fracture in the year 1994 to present

wherein the operative note denotes the use of bone

recovered from a laminectomy as bone graft.

4. Produce any peer reviewed journal article or text-

book that articulates/discusses/recommends the use

of ProOsteon/coral reef in spinal fusions in the years

1994, 1995, 1996, or 1997.

5. Produce any peer reviewed journal article or text-

book that articulates/discusses/recommends the use of

ProOsteon/coral reef without iliac crest autologous

bone graft in thoraco-lumbar spinal fusions.

No. 07-2689 13

6. Produce any peer reviewed journal article or spinal

text that states that iliac crest autograft is not

osteoinductive and contains no live cells when used as

a graft.

Foley filed a motion for a protective order seeking to quash

the subpoena and stop any post-trial discovery. The

Griffins responded that the discovery was necessary

because, among other reasons, they “believe[d]” that Sasso

testified falsely at trial when he stated that “there are

many scientific articles and clinical studies that have been

done looking at hydroxyapatite Pro Osteon to extend

bone grafting in this instance.” The Griffins submitted two

affidavits with their response, one from Dr. Lieberson

claiming that “Sasso’s testimony was likely misleading

and possibly inaccurate”; and the other from Dr. Weis

stating that “either Dr. Sasso’s testimony or my testimony

was inaccurate.”

The district court granted the motion for the protective

order. This appeal followed.

II.

On appeal, the Griffins raise several challenges to the

district court’s management of their case both before,

during, and after trial. First, the Griffins argue that the

district court erred in granting Foley an extension of time

to respond to their August 9, 2006, motion to bar expert

testimony about the use of coral reef meeting the standard

of care. They assert that Foley’s stated reason for the

extension—that he needed to wait until the medical review

14 No. 07-2689

panelists submitted their Rule 26 expert reports before

responding—was a mere pretext because Foley never

produced expert reports for the panelists. The Griffins

further contend that since Foley had Sasso’s Rule 26 report

completed as of June 15, 2006, Foley should have been

able to respond to the Griffins’ motion well before the

August 24 deadline.

We review a district court’s decision to grant an exten-

sion of time for an abuse of discretion. Research Sys. Corp.

v. IPSOS Publicite, 276 F.3d 914, 919 (7th Cir. 2002) (noting

that “[t]he decision concerning whether to grant a con-

tinuance is left to the broad discretion of the district

court”). “District court judges, because of the very nature

of the duties and responsibilities accompanying their

position, possess great authority to manage their caseload.”

Gonzales v. Ingersoll Milling Mach. Co., 133 F.3d 1025, 1030

(7th Cir. 1998) (quoting United States v. Reed, 2 F.3d 1441

(7th Cir. 1993)). For that reason, “[m]atters of trial man-

agement are for the district judge; we intervene only

when it is apparent that the judge has acted unreasonably.”

Research Sys., 276 F.3d at 919 (quoting N. Ind. Pub. Serv. Co.

v. Carbon County Coal Co., 799 F.2d 265, 269 (7th Cir. 1986)).

Although Foley later decided not to file expert reports

from the medical review panelists, we assess the reason-

ableness of the district court’s decision to grant the ex-

tension at the time it was made—not in hindsight. See

Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006). And

viewing this issue from that vantage point, we find no

abuse of discretion in the district court’s decision to

grant Foley an extension. Extensions of time to respond

No. 07-2689 15

to important motions, like this one (which effectively

sought to prevent Foley from presenting a defense on the

central issue in the case), are routinely granted by district

courts and rarely questioned on appeal. With the expert

reports from the medical review panelists still outstanding,

it would have made little sense to require Foley to respond

to the Griffins’ motion twice, first with respect to Sasso

and later when those expert reports were completed. Such

a piecemeal approach would have been a waste of the

parties’ and the court’s time. Moreover, though the Griffins

incurred some inconvenience from the granting of the

extension, the extension was not prejudicial. The trial did

not commence until April 2007, more than half a year

after Foley’s response was filed. Thus, the Griffins had

ample time to effectively prepare for trial even with the

delay caused by the granting of an extension of time for

Foley to respond.

Next, the Griffins take issue with the district court’s

admission of testimony from defense witnesses con-

cerning the support in the medical literature for the use of

Pro Osteon in a spinal fusion surgery. We review the

district court’s decision to admit or exclude evidence for

an abuse of discretion. Estate of Moreland v. Dieter, 395 F.3d

747, 753 (7th Cir. 2005). “Under the ‘abuse of discretion’

standard of review, the relevant inquiry is not how the

reviewing judges would have ruled if they had been

considering the case in the first place . . . .” Wheeler v. Sims,

951 F.2d 796, 802 (7th Cir. 1992) (quoting Deitchman v. E.R.

Squibb & Sons, Inc., 740 F.2d 556, 563 (7th Cir. 1984)).

Rather, the district court’s decision is to be overturned

only if no reasonable person would agree with the trial

16 No. 07-2689

court’s ruling. Snipes v. Ill. Dep’t of Corr., 291 F.3d 460, 463

(7th Cir. 2002).

The Griffins object to Dr. Sasso’s testimony at trial that

there were “many scientific articles and clinical studies

that have been done looking at hydroxyapatite Pro Osteon

to extend bone grafting in this instance.” According to the

Griffins, the admission of that testimony was unfair

because they specifically requested the production of

any peer-reviewed scientific articles upon which Sasso

planned to rely in his trial testimony, yet never received

any.

The Griffins admit that they did not object to that

testimony at trial. Yet they attempt to avoid forfeiture by

pointing to the district court’s denial of one of their

motions in limine and claiming that it preserved their

objection pursuant to Fed. R. Evid. 103(a).1 1 The motion

to which they refer stated:

Defendant has listed on his Amended Final Witness

and Exhibit List “medical literature relied upon by

medical experts and/or physicians.” Defendant has

not disclosed any medical literature or treatises

which his medical experts relied upon in formulating

their opinions in this case. . . . Should Defendant use any

undisclosed literature, articles or treatises in his direct (or

re-direct) examination of his experts, the same will . . .

11

That rule states that “[o]nce the court makes a definitive

ruling on the record admitting or excluding evidence, either at

or before trial, a party need not renew an objection or offer

of proof to preserve a claim of error for appeal.”

No. 07-2689 17

effectively deny Plaintiffs a reasonable opportunity

for their counsel to review the materials to confirm

that the “whole article” stands for the proposition

being made with the witness on the stand; or whether

statements contained therein are being taken out of

context so as to mislead the jury. (Had the disclosure

been timely, preparation for such instances could have

been made.) Accordingly, Plaintiffs move to preclude

Defendant from using any literature or treatises in the

direct or re-direct examinations of his experts.

(Emphasis added.) Notably, the motion attempted only

to prevent Foley from introducing any specific medical

article or treatise that was not disclosed before trial in his

case in chief. It did not cover Sasso’s testimony, however,

which concerned only Sasso’s general recollection of the

support in the medical literature for using Pro Osteon as a

bone graft extender and did not discuss any specific

articles.12 That testimony was fully disclosed before trial.1 3

12

Indeed, Sasso admitted during cross-examination that he

did not bring (nor was asked to bring by Foley’s counsel) any

specific article that supported the use of Pro Osteon.

13

The Griffins should have been well aware before trial that

Dr. Sasso was going to testify that his opinion about Pro Osteon

was based on his general recollection of the medical literature,

and not on any specific article. Dr. Sasso’s Rule 26 report stated

that he based his opinions on his “training, experience, and

research interests” and that the use of Pro Osteon as a bone-graft

extender was a “well-recognized” technique. Dr. Sasso further

elaborated in an affidavit supplementing that report: “As for the

(continued...)

18 No. 07-2689

Consequently, the Griffins have failed to preserve their

objection to Sasso’s testimony for appellate review. Fed. R.

Evid. 103(a)(1); see also Jones v. Lincoln Elec. Co., 188 F.3d

709, 727 (7th Cir. 1999) (“When a party fails to timely and

properly object at trial to the admission of evidence, the

party is deemed to have waived the issue on appeal.”).

Furthermore, even if the Griffins’ motion in limine had

preserved their objection, we see no error warranting

reversal in allowing Sasso to testify thus. Sasso did not

refer to any specific medical literature supporting the

use of Pro Osteon in this case. He made one brief reference

to his general understanding of the medical literature in

the passage of his testimony quoted above. Moreover,

Foley’s attorney did not attempt to elicit any more testi-

mony on that subject. And the Griffins’ attorney had more

than ample opportunity during cross-examination to

challenge the basis for Sasso’s statement, just as Foley’s

attorney had the same opportunity after Weis gave what

was essentially an opinion contrary to Sasso’s.1 4 The

Griffins’ substantial rights were therefore not affected by

13

(...continued)

methodology utilized in developing my opinions, my opinions

are based upon my education, training, experience, research,

clinical practice, scientific presentations and understanding of

the literature in the area of orthopaedic surgery.” (Emphasis added.)

14

Weis testified during direct examination to the effect that it

was not an established practice in the medical community to

use Pro Osteon in the manner Foley did. On cross-examination,

Foley’s attorney asked whether Weis had “done any specific

literature review or looked at any specific articles to

develop [his] opinions,” to which Weis responded: “I have not.”

No. 07-2689 19

the admission of Sasso’s testimony. See Fed. R. Civ. P. 61;

see also Wipf v. Kowalski, 519 F.3d 380, 386 (7th Cir. 2008).

The Griffins also object to the district court’s admission

of Foley’s testimony on redirect about two articles, one

from the manufacturer of Pro Osteon and one from an

advertising trade publication, “Orthopedics Today,”

discussing the use of Pro Osteon in spinal fusions. They

provide little argument in their brief, however, explaining

why that testimony was objectionable, other than to

repeat the hearsay and relevancy objections their lawyer

made at trial. In any event, the district court did not abuse

its discretion in admitting that testimony because the

Griffins’ attorney “opened the door” to it. “[W]hen a

party opens the door to evidence that would be otherwise

inadmissible, that party cannot complain on appeal about

the admission of that evidence.” United States v. Gilbertson,

435 F.3d 790, 797 (7th Cir. 2006) (internal citation omitted).

As the district court noted here, counsel for the Griffins

during cross-examination questioned Foley specifically

about the two articles. On redirect, Foley testified that

those two articles, which he had produced for the Grif-

fins’ attorney, did support the use of Pro Osteon in spine

fusions.15 Since that testimony was elicited simply to rebut

the impression that Foley had not provided any informa-

tion on the use of Pro Osteon in spinal fusions, its admis-

sion was proper. Cf. Wipf, 519 F.3d at 386 (finding that

plaintiff “opened the door” to cross-examination on

15

The articles themselves were not entered into evidence

and admitted as exhibits to the jury.

20 No. 07-2689

a scientific article published in 2005 when her attorney

questioned an expert about a previous article by the

same author whose views were updated in the 2005

article).

The Griffins next challenge the district court’s denial of

their motion to strike the motions in limine Foley filed on

September 27, 2006, which sought to limit the Griffins’

expert testimony. According to the Griffins, the deadline

for motions seeking to limit expert testimony at trial in

the case management plan was August 10, 2006. Allowing

Foley to file his motions more than a month and a half

after that date, the Griffins argue, was an abuse of discre-

tion, deprived them of a fair trial, and amounted to “trial

by ambush.” The problem with that argument is that even

if the district court’s action in allowing Foley’s motions to

be filed at so late a date constituted a gross abuse of

discretion, the Griffins cannot show that they were de-

prived of a fair trial—nor that they were subjected to “trial

by ambush”—by that error. The Griffins’ motion to

strike Foley’s motions in limine was denied on October 4,

2006. The very next day, the Griffins filed a motion—which

was granted—to reset the trial date. The trial did not

commence until April 6, 2007, more than six months after

the denial of the Griffins’ motion to strike (and the dis-

trict court’s decisions on Foley’s motions in limine). In

light of that chronology, the Griffins’ claim that they were

somehow “ambushed” at trial due to the late filing of

Foley’s motions in limine has no merit.

Next, the Griffins argue that the district court erred in

refusing to allow them to use the “discovery” portions of

No. 07-2689 21

the first depositions of their experts at trial. They also

challenge the exclusion of the testimony their lawyer

elicited from Weis during the beginning of the follow-up

deposition. As was mentioned above, we review a

district court’s decision to admit or exclude evidence for

an abuse of discretion. Dieter, 395 F.3d at 753.

The Griffins argue that the district court’s distinction

between “evidentiary” and “discovery” depositions is

erroneous. They cite to Tatman v. Collins, 938 F.2d 509 (4th

Cir. 1991). In that case, the plaintiff’s expert became

unavailable due to a scheduling conflict. As a consequence,

the plaintiff sought to introduce the expert’s deposition

testimony at trial. The defendant objected, and the

district court excluded the deposition on the basis that

it was a “discovery” deposition rather than one taken

for use at trial. The Fourth Circuit reversed, stating that

“[t]he Federal Rules of Civil Procedure make no distinc-

tion for use of a deposition at trial between one taken

for discovery purposes and one taken for use at trial.” Id.

at 510.

We acknowledge the Tatman court’s general point that

the rules are silent regarding any distinction between

depositions for discovery purposes and those taken for

the purpose of use at trial. But given the particular cir-

cumstances that arose during discovery in this case,

Tatman does not resolve the issue. In contrast to the

situation in Tatman, the Griffins were well aware of the

unavailability of their experts long before trial. Shortly

before Foley’s first discovery deposition of the Griffins’

experts was scheduled to begin, the Griffins sought to

22 No. 07-2689

include their own deposition of their expert at the

same sitting for use as their evidentiary proof at trial.

Foley’s attorneys objected, asserting that they had not been

given a sufficient opportunity to discover the basis of the

expert testimony by the Griffins’ experts in order to

prepare for cross-examination. The magistrate judge,

responding to that concern, 1 6 ordered that Foley first be

allowed to take depositions of the Griffins’ experts for

discovery purposes, followed at a later date by a deposi-

tion to be used for purposes of trial. In essence, the magis-

trate judge proposed a separate deposition schedule

for each expert purely for the purposes of obtaining

testimony for use at trial. (Though the magistrate judge’s

order contemplated that the second deposition would

be for purposes of evidentiary proof, the Griffins’ attorney

chose to elicit testimony for use at trial immediately after

Foley’s counsel concluded the “discovery” portion of the

experts’ first depositions, instead of at the follow-up

depositions.)

Although the rules are silent about employing such

a procedure, we believe that the magistrate judge’s use

of it in this case was reasonable and within his discre-

tion. Foley legitimately noticed the discovery depositions

to be taken in advance of the evidentiary depositions.

The obvious purpose of discovery is to determine the

16

Although the Griffins claim that the experts’ Rule 26 reports

should have been enough for Foley to prepare his cross-

examination of those experts, we note that in the district

court the adequacy of the Griffins’ Rule 26 disclosures was

vigorously disputed.

No. 07-2689 23

opinions and positions of the opposition’s witnesses and

prepare for cross-examination. Had there not been some

gap in time between the discovery depositions and the

cross-examination of the Griffins’ experts, Foley’s attor-

neys would not have been able to effectively prepare for

cross-examination.

Given the reasonableness of the magistrate judge’s

procedure for allowing the Griffins to obtain their eviden-

tiary proof from their experts before trial, the district

court did not abuse its discretion when, following through

on what the magistrate judge had allowed, it confined

the Griffins at trial to the “evidentiary” portions of the

first depositions. The Griffins had already requested and

been granted a fair opportunity to elicit deposition testi-

mony for use at trial. The Griffins had their chance to ask

Weis any question they wanted during the “evidentiary”

portion of the first depositions. Foley’s counsel’s video-

taped cross-examinations of the Griffins’ experts were

in response to the testimony presented in those

designated evidentiary depositions. To allow the

Griffins to introduce testimony from the experts’ deposi-

tions that was outside the scope of the “evidentiary”

portions would therefore have been unfair to Foley. For

the same reason, the district court did not abuse its dis-

cretion in excluding the testimony elicited by the Griffins’

attorney at the beginning of what was supposed to be

confined to Foley’s cross-examination of Weis.

The Griffins next challenge the inclusion of the phrase

“orthopaedic surgeon” in Instructions 20, 21, and 22. Of

those three, the Griffins primarily focus their arguments

24 No. 07-2689

on Instruction 22, which instructed the jury that “[i]n

deciding whether an orthopaedic surgeon exercised

reasonable care and skill in the treatment of a patient, you

must consider only the expert testimony of qualified

orthopaedic surgeons who are members of the orthopaedic

surgeon’s profession.” The Griffins contend that Instruc-

tion 22’s use of the confining phrase “orthopaedic surgeon”

effectively wiped out the testimony of their expert

Lieberson because he was a neurosurgeon and not an

orthopedic surgeon. As a consequence, the Griffins seek a

new trial.

In response, Foley asserts that the Griffins failed to

timely object under Fed. R. Civ. P. 51. Subsection (b)(2) of

Rule 51 states that the court must give the parties an

opportunity to object on the record before the instruc-

tions and arguments are delivered. Subsection (c)(2) of

Rule 51 states that “[a]n objection is timely if a party

objects at the opportunity provided under Rule 51(b)(2).”

Here, the district court gave the Griffins an opportunity

to record objections to any of the instructions on the

record. They objected to one instruction but failed to

raise any objection to Instruction 22. While the Griffins

argue that the mere tendering of proposed instructions

different from the instructions given is sufficient to pre-

serve the objection, we specifically rejected that argument

in Gordon v. Degelmann, 29 F.3d 295, 298 (7th Cir. 1994).1 7

17

The Griffins claim that Gordon is questionable authority in

light of the 2003 amendments to Rule 51, but that is not correct.

(continued...)

No. 07-2689 25

Thus, their objection was not properly preserved.

Nevertheless, as a last resort, Rule 51 now allows a

court to remedy an error in the instructions that was not

properly preserved if the error is plain and affects sub-

stantial rights. Fed. R. Civ. P. 51(d)(2); see also Mesman

v. Crane Pro Servs., 512 F.3d 352, 357 (7th Cir. 2008)

(“[W]hile a plain error even in instructions in a civil case

is now a basis for reversal, reversal is not automatic; it is in

the discretion of the reviewing court . . . .” (Internal

citations omitted.)). Assuming that it was error to use

“orthopaedic surgeon” in Instruction 22 when an impor-

tant witness was a neurosurgeon, that error does not merit

a new trial. Although the issue is close, the Griffins have

not shown that the error in instruction affected their

substantial rights. In other words, the Griffins’ case “is not

so strong that we can say that had it not been for an

erroneous instruction [they] would surely have prevailed

at trial.” Mesman, 512 F.3d at 357.

Instruction 22 operated to remove from the jury’s

consideration Lieberson’s testimony with respect to the

17

(...continued)

Though adding plain error review, the 2003 amendments to

Rule 51 actually tightened the window during which an objec-

tion to a jury instruction is proper. The pre-2003 rule allowed

a timely objection at any time “before the jury retires to con-

sider its verdict,” Gordon, 29 F.3d at 298 (quoting Rule 51 as it

was before the 2003 amendments), whereas the rule now

requires a party to object at the opportunity provided by the

court “before the instructions and arguments are delivered.”

Fed. R. Civ. P. 51(b)(2) (2008).

26 No. 07-2689

standard of care. If Lieberson had been the only expert

testifying in favor of the Griffins on the issues sur-

rounding the standard of care, then we might be com-

pelled to reverse.18 But the Griffins’ was not a one-expert

case. Instruction 22 did not leave the Griffins bereft of all

expert testimony on the standard of care because the

jury still had Weis’s testimony before it. Weis gave sub-

stantially the same opinions as Lieberson on the crucial

standard-of-care issues, such as whether Foley ought to

have used bone from Lisa’s iliac crest rather than

laminar bone for a bone graft, whether Foley’s use of Pro

Osteon in Lisa’s surgery violated the standard of care,

and whether Foley met the standard of care in his post-

operative treatment of Lisa.1 9 True, the testimony of

Lieberson and that of Weis were not identical; in fact, in

18

The Griffins were able to argue that the district court qualified

Lieberson as an expert, so the jury would still have con-

sidered his testimony to a certain extent—just not with respect

to whether Foley exercised reasonable care and skill in the

treatment of Lisa.

19

There is one opinion on the standard of care that Lieberson

expressed that was not reiterated by Weis. Lieberson stated

that the laminectomy Foley performed during the surgery was

not necessary. If Instruction 22 erroneously excluded Lieberson’s

testimony, then it would have prevented the jury from con-

sidering that opinion. The exclusion of that opinion from the

jury’s consideration does not warrant reversal, however, because

Foley himself testified during cross-examination that the

laminectomy was not necessary for purposes of decom-

pressing the spinal canal. Given Foley’s admission, Lieberson’s

opinion testimony with respect to the need for a laminectomy

was not essential to the Griffins’ case.

No. 07-2689 27

many instances Lieberson’s opinions were much more

detailed and clearly explained. Lieberson also testified live,

while Weis’s testimony was via videotaped deposition.

Nevertheless, viewing the evidence presented at trial as

a whole, we are unable to conclude that Lieberson’s

testimony, giving substantially the same opinions on the

standard of care as Weis, would have swayed the jury

verdict in the Griffins’ favor had not Instruction 22 ex-

cluded it. Thus, we decline to exercise our discretion to

order a new trial on account of Instruction 22.

Lastly, the Griffins claim that, after trial, the district

court erred in quashing their subpoena seeking post-trial

discovery from Sasso. The Griffins believe that Sasso lied

when he stated at trial that “there are many scientific

articles and clinical studies that have been done looking

at hydroxyapatite Pro Osteon to extend bone grafting.”

They assert that the information subpoenaed was neces-

sary to establish Sasso’s dishonesty.

We review a district court’s decision to limit discovery

for abuse of discretion. Vallone v. CNA Fin. Corp., 375 F.3d

623, 629 (7th Cir. 2004). There was no abuse of discretion

here. The district court had closed discovery long before

the Griffins’ post-trial attempt to subpoena Sasso. The

place to challenge Sasso’s statement was during cross-

examination, not after trial. Post-trial discovery is usually

reserved for when a party becomes aware of new informa-

tion after trial. See Viskase Corp. v. Am. Nat’l Can Co., 261

F.3d 1316, 1324 (Fed. Cir. 2001). Although at least one

court has allowed post-trial discovery where there was

evidence of perjury, see Viskase Corp. v. Am. Nat’l Can Co.,

28 No. 07-2689

979 F. Supp. 697, 699-703 (N.D. Ill. 1997), the Griffins have

not offered any evidence of perjury that would justify post-

trial discovery in this instance. The affidavits of Weis and

Lieberson accompanying the Grifffins’ response to Foley’s

motion for a protective order say only that they believed

Sasso’s testimony to be “inaccurate”; they do not begin to

show that Sasso’s testimony was false, much less perjury.2 0

See Montaño v. City of Chicago, __ F.3d __ , No. 06-2148, slip

op. at 8 (7th Cir. July 23, 2008) (defining perjury as “false

testimony concerning a material matter with the willful

intent to provide false testimony, rather than as a result of

confusion, mistake, or faulty memory”). Thus, the district

court did not abuse its discretion by refusing to allow

discovery in response to the Griffins’ unsubstantiated

allegations of false testimony. See H.K. Porter Co. v. Good-

year Tire & Rubber Co., 536 F.2d 1115, 1122 (6th Cir. 1976)

(“The District Judge who presided over this protracted

trial and who considered the evidence offered by Goodyear

in support of its Rule 60(b) motion, did not believe that

any fraud on the Court had been perpetrated on him. As

an experienced trial judge he was in the best position to

20

Indeed, Weis’s statement in his affidavit that during the

“considerable amount of time searching the medical literature”

he spent in preparation for the case he was “unable to establish

any basis upon which Dr. Sasso could reassure the court

regarding the appropriate use of coral hydroxapatite” was

itself misleading, since Weis acknowledged during cross-

examination that he had not done any specific review of the

medical literature with respect to his opinion about the ap-

propriate use of Pro Osteon.

No. 07-2689 29

know. He was also in a good position to evaluate

whether [the proposed discovery] would have made any

difference in his holding . . . .”).

Moreover, the district court was well within its discre-

tion to quash the subpoena as unduly burdensome. See

Fed. R. Civ. P. 45(c)(3)(A)(iv). What the subpoena sought

from Sasso was far more expansive than information

related to his testimony about articles and studies sup-

porting the use of Pro Osteon. For instance, the subpoena

commanded Sasso to produce “redacted copies of any

operative report at any time since the year 1994 wherein

a laminectomy was performed during the course of

repairing/fusing with internal fixation of a thoraco-lumbar

burst vertebral fracture.” It also would have required Sasso

to “[p]roduce redacted copies of any operative report for

repairing/fusing with internal fixation of a thoraco-lumbar

burst fracture in the year 1994 to present wherein the

operative note denotes the use of bone recovered from

a laminectomy as bone graft.” Those far-reaching requests

had nothing to do with whether any articles or studies

supporting the use of Pro Osteon existed. The Griffins’

contention that the district court abused its discretion

in quashing their untimely and overly-broad subpoena

is without merit.

III.

As we have said before, “civil litigants are entitled to a

fair trial, not a perfect one.” Lemons v. Skidmore, 985 F.2d

354, 357 (7th Cir. 1993). In its order denying the Griffins’

motion for a new trial, the district court stated that it was

30 No. 07-2689

satisfied that the Griffins received a fair trial. We echo

that sentiment, and A FFIRM the judgment of the district

court.

9-4-08