# Marino v. Ballestas > Court of Appeals for the Third Circuit · November 28, 1984 · 749 F.2d 162 URL: https://www.frixlaw.com/law-library/cases/8926540 ## Case - **Full name:** Joseph MARINO and Claide Marino, individually and as parents and natural guardians of Maria Marino, a minor v. Roberto BALLESTAS, M.D., and Gnaden Huetten Memorial Hospital - **Court:** Court of Appeals for the Third Circuit - **Decided:** November 28, 1984 - **Citations:** 749 F.2d 162 - **Precedential status:** Published - **Opinion:** Dissent by Weis - **Judges:** Becker, Weis - **Cited by:** 18 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8926540 ## Opinion text WEIS, Circuit Judge, dissenting. I believe that the majority has improperly invaded the province of the jury, and therefore dissent from the grant of a new trial. The district court instructed the jury that plaintiffs had the burden of proving that they did not know all the options open to them when they gave their consent to the surgery. The trial judge described the physician’s duty to explain available alternatives as “what a reasonable orthopedic surgeon would tell the parents in similar circumstances, and you have heard some testimony about that.” The jury answered “No” to an interrogatory that asked “Have plaintiffs shown by a fair preponderance of the evidence that the consent given for the surgical procedure performed by Dr. Ballestas was not informed consent?” Despite this unequivocal finding that plaintiffs failed to meet the burden of proof, the majority now grants a new trial. The majority’s decision is based on the conclusion that “there was no evidence to support the jury’s verdict that the Marinos were informed when they consented to the operation ... the record is therefore deficient of that minimum quantum of evidence from which the jury could have declined to afford relief.” This determination overlooks the basic rule that the plaintiff has the burden of proof. Unless that burden is met, a jury has no alternative but to decline relief. The majority concedes that there was “confusion at the trial resulting from the plaintiffs’ attempt to try the case” on several theories simultaneously and that this confusion was exacerbated by the testimony of the plaintiffs’ expert witness. Thus, even the majority concedes that the blame for not presenting the issue in an understandable fashion rests with plaintiffs. The trial judge summarized the point precisely: “The real and only issue in this case was whether the defendant Ballestas was guilty of malpractice in recommending surgery and the basic question was decided against the plaintiffs.” Having lost on that ground, plaintiffs now seek a new trial on a collateral issue that they tossed into the jury box without adequate preparation. If the plaintiffs’ case was confusing to the jury, I fail to see how it can be faulted for finding that the burden of proof had not been satisfied. Even under the majority’s finding of confusion, the jury would be justified in finding that plaintiffs failed to meet their burden of proof. It is not the proper function of an appellate court to order a new trial simply because plaintiffs, represented by competent counsel, failed to present their case in such a manner that the issue was clear to the factfinder. Moreover, a review of the testimony furnishes other bases for the jury’s finding. The issue of informed consent in this case necessarily rested on credibility determinations. The mother testified that Dr. Balles- *171 tas told her she could not transport her daughter back to New Jersey, and that surgery must be performed within two hours. The doctor, however, denied these statements, saying he told the parents that they could take the child at any time but that he feared further damage if surgery was not performed. Clearly there was a basis for caution because the child’s symptoms suggested to Dr. Ballestas that the radial nerve was trapped between bone fragments and subject to undesirable compression. Indeed, during the subsequent surgery the nerve was discovered wedged between bone fragments. In addition, the mother testified that she telephoned the family orthopedist’s office in New Jersey and discussed the matter with persons there. Whether she spoke with the doctor or other members of his staff is not clear from the record. The jury may well have found it significant that the mother did not mention whether her own orthopedist or his staff had discussed the possibility of foregoing surgery and returning home. Essentially, what evidence plaintiffs did present as to lack of informed consent consisted of the parents’ testimony. If the jury did not find that testimony credible, adequate justification existed for a finding that the burden of proof had not been met. One of the least assailable findings by a jury is that a party has failed to meet its burden, particularly when judgments of credibility loom large. In circumstances such as those present here, an appellate court should rely heavily on the opinion of an experienced and able trial judge who was intimately familiar with all that transpired at the trial. Our review is limited, and, in circumstances such as those here, we reverse the denial of a new trial by a district judge only for an abuse of discretion. Thomas v. E.J. Korvette, Inc., 476 F.2d 471 (3d Cir.1973). The plaintiffs have failed utterly to meet that test in this appeal. I would affirm. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8926540. Public record. Not legal advice.