Petition for Writ of Certiorari — Marco Gonzalez, Petitioner v. Salem Shahin, et al.

Supreme Court briefJan 19, 2024

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No. _____

In the

Supreme Court of the United States

MARCO GONZALEZ,

Petitioner,

SALEM SHAHIN, MD; CAROL GILMORE, MD, RICHARD

MARTIN, MD; PAUL ANDELIN, MD, JEFFREY ADAMS, PA-C;

MERCY MEDICAL CENTER; MCKENZIE COUNTY

HEALTHCARE SYSTEMS, INC.

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

Jim Leventhal

Julia T. Thompson

Nathaniel E. Deakins

LEVENTHAL PUGA

BRALEY P.C.

950 S. Cherry Street

Suite 600

Denver, CO 80246

Robert S. Peck

Counsel of Record

CENTER FOR CONSTITUTIONAL

LITIGATION, PC

1901 Connecticut Ave., N.W.

Suite 1008

Washington, DC 20009

(202) 944-2874

robert.peck@cclfirm.com

Counsel for Petitioner

QUESTIONS PRESENTED

This Court has made clear that the time requirements contained in the civil rules are claim-processing

requirements that are subject to waiver and forfeiture, rather than mandatory and jurisdictional. Yet,

largely as an artifact of what this Court described as

a prior “profligate” use of the term “jurisdiction,” the

lower courts have retained the jurisdictional bar when

a district court has improperly extended the time for

post-judgment motions granted without objection.

The first Question Presented is:

Does an unobjected-to extension of time to file a

post-judgment motion, even though unauthorized by

the civil rules, permit appellate review of the underlying judgment when the notice of appeal is timely when

measured from the disposition of that motion?

This case also presents a second Question:

Are a judge’s comments belittling the import of evidence that courts usually treated as establishing a

prima facie case and impugning the motives of counsel, which the judge later wrote was only a “joke,”

cured at the end of a trial by a generic instruction that

the jury should reach its own verdict?

PARTIES TO THE PROCEEDING

The Petitioner is Marco Gonzalez, the appellant

below and plaintiff in the district court.

Respondents are Salem Shahin, Carol Gilmore,

Richard Martin, Carol Gilmore, Paul Andelin, Jeffrey

Adams, Mercy Medical Center, and McKenzie County

Healthcare Systems, Inc., appellees below and defendants in the district court.

STATEMENT OF RELATED PROCEEDINGS

The following proceedings are directly related to

this case within the meaning of Rule 14.1(b)(iii):

•

Gonzalez v. Shahin, No. 22-2012, U.S. Court of

Appeals for the Eighth Circuit. Judgment entered August 16, 2023.

•

Gonzalez v. Shahin, No. 1:17-CV-157, U.S. District Court for the District of North Dakota.

Judgment entered November 19, 2021 and

amended on April 27, 2022.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED........................................ i

PARTIES TO THE PROCEEDING ........................... ii

STATEMENT OF RELATED PROCEEDINGS ........ ii

APPENDIX INDEX ................................................... vi

TABLE OF AUTHORITIES ..................................... vii

OPINIONS BELOW ....................................................1

JURISDICTION ..........................................................1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ..................................1

INTRODUCTION ........................................................3

A. Underlying Facts. ...........................................5

B. Proceedings Below. .........................................7

1. District Court..................................................7

2. Court of Appeals. ..........................................10

REASONS FOR GRANTING THE PETITION........11

I. THIS CASE PRESENTS A NEW

APPLICATION OF A RECURRING ISSUE

THAT THIS COURT HAS ATTEMPTED TO

CLARIFY BEFORE AND THAT REMAINS OF

GREAT NATIONAL IMPORTANCE. ...............13

A. This Court’s Repeated Efforts to Clarify the

Applicable Law Demonstrates the National

Importance of the Issue. ...............................14

B. The Internal Contradiction in the Treatment

of the Notice of Appeal as JurisdictionDepriving for One Purpose and

Jurisdictionally Insignificant for Another Is

an Artifact of an Earlier, Now-Abandoned

Jurisprudence that Only this Court Can

Correct

.. ..................................................16

C. This Court’s Attempts to Curb the Misuse of

“Jurisdiction” Have Gone Unheeded. ..........18

D. The Decision Below Deepens the Conflict in

the Circuits. ..................................................21

1. Three circuits hold that an improperly

extended time to file a post-judgment

motion does not deprive a court of

jurisdiction. ............................................22

2. Four circuits, in addition to the Eighth

Circuit here, hold that an untimely postjudgment motion fails to permit an

appeal of the underlying judgment. .......24

3. Four circuits continue to view compliance

with Rule 4’s thirty-day rule as

jurisdictional. .........................................25

II. THE JURISDICTIONAL RULING OF THE

COURT BELOW IS WRONG. ...........................27

III. THE DECISION BELOW ON THE IMPACT OF

THE JUDGE’S EVIDENCE-DENIGRATING

“ADDITIONAL INSTRUCTION” IMPLICATES

THE NATION’S DRUG-SAFETY REGIME AND

DUE PROCESS, MAKING IT AN ISSUE OF

NATIONAL IMPORTANCE. .............................30

A. The Additional Instruction Was At Odds with

the Nation’s Drug Safety Regime. ...............31

B. The Comments Implicated Due Process. .....33

IV. The Eighth Circuit’s Finding a Generic

Instruction about the Jury’s Responsibility to

Reach its Own Verdict Conflicts with More

Pointed Curative Instructions Required in Other

Circuits................................................................35

A. Many Circuits Recognize Prejudice More

Handily or Require More Connected Curative

Instructions. ..................................................35

B. The First Circuit Appears Far More

Deferential, Much Like the Eighth. .............37

CONCLUSION ..........................................................38

APPENDIX INDEX

Appendix A Opinion in the United States Court of

Appeals for the Eighth Circuit

(August 16, 2023) . . . . . . . . . . . . App. 1a

Appendix B Order of the United States District

Court for the District of North Dakota

(April 27, 2022) . . . . . . . . . . . . App. 16a

Appendix C Transcript Excerpts from the United

States District Court for the District of

North Dakota

(Filed June 24, 2022) . . . . . . . . App. 26a

Appendix D Order of the United States Court of Appeals for the Eighth Circuit (September

21, 2023) . . . . . . . . . . . . . . . . . . App. 32a

Appendix E Amended Judgment of the United

States District Court for the District of

North Dakota (April 27, 2022)..App. 33a

Appendix F Judgment of the United States District

Court for the District of North Dakota

(November 19, 2021) . . . . . . . . App. 35a

vii

TABLE OF AUTHORITIES

CASES

Advanced Bodycare Sols., LLC v. Thione Int’l, Inc.,

615 F.3d 1352 (11th Cir. 2010) ..........................23

Anderson v. Liberty Lobby, Inc., 477 U.S. 242

(1986) ..................................................................34

Arbaugh v. Y&H Corp., 546 U.S. 500 (2006) ...........19

Arnold v. Wood, 238 F.3d 992, 995 (8th Cir. 2001) ..20

Art Attacks Ink, LLC v. MGA Entm’t Inc., 581 F.3d

1138 (9th Cir. 2009) ............................................23

Bentley v. Stromberg–Carlson Corp., 638 F.2d 9 (2d

Cir. 1981) ............................................................36

Blue v. Int’l Brotherhood of Elec. Workers Local

Union 159, 676 F.3d 579 (7th Cir. 2012) .....23, 25

Bowles v. Russell, 551 U.S. 205

(2007)............................... 13, 14, 15, 16, 18, 19, 26

Brockett v. Brockett, 43 U.S. (2 How.) 238 (1844) ....27

Browder v. Dir., Dep’t of Corr. of Ill., 434 U.S. 257

(1978) ..................................................................17

viii

Bunn v. Perdue, 966 F.3d 1094 (10th Cir. 2020). .....25

Cameron v. EMW Women's Surgical Ctr., P.S.C., 595

U.S. 267 (2022) ..................................................14

Centocor, Inc. v. Hamilton, 372 S.W.3d 140 (Tex.

2012)....................................................................32

Dill v. Gen. Am. Life Ins. Co., 525 F.3d 612

(8th Cir. 2008) .....................................................23

Feinstein v. Moses, 951 F.2d 16 (1st Cir. 1991) ........24

Frew v. Young, 992 F.3d 391 (5th Cir. 2021) ............26

Galloway v. United States, 319 U.S. 372 (1943) ......33

Green v. DEA, 606 F.3d 1296 (11th Cir. 2010) ........26

Griggs v. Provident Consumer Discount Co.,

459 U.S. 56 (1982) (per curiam) ...................15, 29

Hamer v. Neighborhood Housing Serv. of Chicago,

583 U.S. 17 (2007)

........... 14, 15, 16, 17, 19, 20, 21, 25, 26, 27, 28, 29

Henderson ex rel. Henderson v. Shinseki, 562 U.S.

428 (2011) .....................................................19, 27

In re Murchison, 349 U.S. 133 (1955) .......................34

In re Robertson, 774 F. App'x 453 (10th Cir. 2019) ..25

Johnson v. Helmerich & Payne, Inc., 892 F.2d 422

(5th Cir. 1990).....................................................36

Kontrick v. Ryan, 540 U.S. 443 (2004) ......................18

Legg v. Ulster Cnty., 820 F.3d 67 (2d Cir. 2016) 22, 23

Leishman v. Associated Wholesale Elec. Co., 318

U.S. 203 (1943) ...................................................27

Logue v. Dore, 103 F.3d 1040 (1st Cir. 1997) ...........37

Maheu v. Hughes Tool Co., 569 F.2d 459 (9th Cir.

1977)....................................................................36

McLanahan v. Universal Ins. Co., 26 U.S. (1 Pet.)

170 (1828) ..........................................................33

Marshall v. Jerrico, Inc., 446 U.S. 238 (1980) ..........33

Mobley v. C.I.A., 806 F.3d 568 (D.C. Cir.

2015) ...................................................................23

Morlino Medical Center of Ocean County, 152 N.J.

563, 706 A.2d 721 (N.J. 1998) ..............................9

Mulder v. Parke Davis & Co., 181 N.W.2d 882 (Minn.

1970)....................................................................32

Nat’l Ecological Found. v. Alexander, 496 F.3d 466

(6th Cir. 2007)...............................................23, 24

Nutrition Distribution LLC v. IronMag Labs, LLC,

978 F.3d 1068 (9th Cir. 2020) ............................26

Obaydullah v. Obama, 688 F.3d 784 (D.C. Cir. 2012)

curiam) ...........................................................22,25

Overstreet v. Joint Facilities Mgmt., L.L.C., 496 Fed.

App’x 421 (5th Cir. 2012) ...................................26

Owen Equipment & Erection Co. v. Kroger, 437

U.S. 365 (1978) ...................................................28

Quercia v. United States, 289 U.S. 466 (1933) .........33

Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154

(2010)) ............................................... 15, 16, 18, 23

Richardson-Merrell, Inc. v. Koller, 472 U.S. 424

(1985) ..................................................................30

Ruiz v. Wing, 991 F.3d 1130, 1137–38 (11th Cir.

2021) ...................................................................26

Sebelius v. Auburn Reg'l Med. Ctr., 568 U.S. 145, 153

(2013) ..................................................................19

Shuler v. Orangeburg Cnty. Sheriff's Dep’t, 71 F.4th

236 (4th Cir. 2023)..............................................26

Spencer v. Ashcroft, 147 F. App’x 37 (4th Cir. 2005)

.............................................................................36

State Nat’l Ins. Co. v. Cnty. of Camden, 824 F.3d 399

(3d Cir. 2016) ......................................................25

Switzerland Cheese Ass’n, Inc. v. E. Horne’s Mkt.,

Inc., 385 U.S. 23 (1966) ......................................30

Ueckert v. Guerra, 38 F.4th 446 (5th Cir. 2022) .......26

United States v. Brandom, 479 F.2d 830 (8th Cir.

1973)....................................................................33

United States v. Hope, 714 F.2d 1084

(11th Cir. 1983)...................................................37

Vaqueria Tres Monjitas, Inc. v. Comas-Pagan, 772

F.3d 956 (1st Cir. 2014) ......................................24

Vicksburg & Meridian R. Co. v. Putnam, 118 U.S.

545 (1886) ...........................................................33

Wallace v. FedEx Corp., 764 F.3d 571

(6th Cir. 2014).....................................................24

xii

Weitzner v. Cynosure, Inc., 802 F.3d 307 (2d Cir.

2015) ...................................................................23

Winkjer v. Herr, 277 N.W.2d 579 (N.D. 1979) ..........32

Wyeth v. Levine, 555 U.S. 555 (2009) ........................31

STATUTES

Federal Food, Drug, and Cosmetic Act, ch. 675, 52

Stat. 1040, as amended, 21 U.S.C. § 301 .....31, 32

RULES

Fed. R. App. P. 4 ......................2, 13-14, 15, 17, 19, 20

Fed. R. Civ. P. 6 .......................... 2, 3, 4, 10, 11, 14, 22

OTHER AUTHORITIES

1 Fed. Jury Prac. & Instr. (6th ed)............................34

21 C.F.R. § 201.57 ......................................................32

82 A.L.R.4th 166 ..........................................................7

Henry P. Chandler, Some Major Advances in the

Federal Judicial System 1922-1947, 31 F.R.D.

307, 503 (1963)....................................................29

xiii

Jack B. Weinstein, The Power and Duty of

Federal Judges to Marshall and Comment on

the Evidence in Jury Trials and Some Suggestions Charging Juries, 118 F.R.D. 161, 170

(1988).............................................................34, 35

PETITION FOR A WRIT OF CERTIORARI

Marco Gonzalez respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Eighth Circuit in this case.

OPINIONS BELOW

The opinion of the Eighth Circuit is reported at 77

F.4th 1183 and included in the Appendix (“App.”) at

App. 1a. The district court’s judgment is unreported.

Its opinion denying a new trial is unreported but

found at 2022 WL 1564794 and at App. 16a.

JURISDICTION

The judgment of the Eighth Circuit was entered

on August 16, 2023, App. 1a, and a petition for rehearing en banc was denied on September 21, 2023. App.

32a. On December 14, 2023, Justice Kavanaugh extended the time to file this Petition to January 19,

2024. No. 23A540. This Court’s jurisdiction rests on

28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment provides:

No person shall . . . be deprived of life, liberty,

or property, without due process of law.

28 U.S.C. § 2707(a) provides:

. . . no appeal shall bring any judgment, order

or decree in an action, suit or proceeding of a

civil nature before a court of appeals for review unless notice of appeal is filed, within

thirty days after the entry of such judgment,

order or decree.

Federal Rule of Appellate Procedure 4(a)(1)(A)

provides:

In a civil case, . . . the notice of appeal . . . must

be filed with the district clerk within 30 days

after entry of the judgment or order appealed

from.

Federal Rule of Appellate Procedure 4(a)(4)(A)

provides:

If a party files in the district court any of the

following motions under the Federal Rules of

Civil Procedure--and does so within the time

allowed by those rules--the time to file an appeal runs for all parties from the entry of the

order disposing of the last such remaining motion: . . .

(v) for a new trial under Rule 59; . . .

Federal Rule of Civil Procedure 6(b)(2) provides:

A court must not extend the time to act under

Rules . . . 52(b), . . ..”

INTRODUCTION

The decision below reflects a hybrid approach to

enforcement of civil time requirements that is internally contradictory and denies appellate jurisdiction

over the underlying judgment but permits review of

the post-judgment ruling, even though the timing requirements for both is triggered by the same event.

The differential treatment of the notice of appeal for

these two purposes is emblematic of confusion and

conflict among the circuits and confounding to counsel.

The Eighth Circuit in this case held that the district court erred by extending the time to file a motion

for a new trial. App. 7a. As a consequence, the approved extension, to which no defendant objected, was

deemed ineffective to toll the time to file a notice of

appeal, depriving the appellate court of jurisdiction to

review the original judgment, even though the court

understood that Rule 6(b)(2), which “prohibits extending the deadline for Rule 59 motions—is a nonjurisdictional rule subject to forfeiture.” App. 7a-8a.

Then, however, the court treated the same rule,

Rule 6(b)(2), as nonjurisdictional and subject to forfeiture only for another purpose: to assume jurisdiction

over the district court’s rulings on the motion for a

new trial. In other words, the court regarded Rule

6(b)(2)’s time requirements as a claim-processing rule

only for one of the two bases of appeal. Yet, none of the

underlying facts changed about the validity of the

Rule 59(b) motion.

The resulting ruling on the court’s jurisdiction is

insensible and fails to accord Rule 6(b)(2) with the uniform claim-processing status that this Court’s precedents assign it. It also perpetuates problems this

Court has identified in the misuse of the word “jurisdiction,” while it encourages piecemeal appeals of the

same issues from the trial under two different standards of review, when a grant of the new-trial motion

would moot the first notice of appeal, potentially well

after a briefing schedule was established. It further

conflicts with the standard practice of divesting a district court of jurisdiction over the merits while the

case is pending in the appellate court.

This recurring and disruptive issue about the timing and jurisdictional status of time requirements under the civil rules requires the attention of this Court

to resolve, as the circuits are intractably split.

In addition to presenting an issue about claimprocessing rules and jurisdiction, the Eighth Circuit

held that the district judge’s denigrating comments

about a key evidentiary aspect of the case, usually

treated under state law as establishing a prima facie

case and about the motives of plaintiff’s counsel,

which he later wrote was only a “joke,” App. 20a, was

insignificant and cured at the end of a trial by a generic instruction that the jury should reach its own

verdict. Although the Eighth Circuit labeled the comments “ill-advised,” App. 11a, its cavalier treatment of

the issue only encourages judges to put their thumbs

on the scales of justice as long as they also tell the jury

to be fair.

Allowing improper supplemental comments that

the judge denominated as an “additional instruction,”

App. 27a, which were delivered when the jury was

presented with the evidence and completely focused

on it, effectively licenses that type of behavior when it

should not be tolerated in a system of fair and impartial justice. Given the significant turnover within the

federal judiciary over the past decade with many new

judges often unfamiliar with many of the requirements at trial, as this judge was about the rule limiting extensions of motions for a new trial, drains the

promise of due-process’s fairness requirement at a

time when trials are difficult to come by. The issue is

one of great national importance and one where the

circuits are hopelessly conflicted, lacking guidance

about when those judicial comments go too far.

STATEMENT

A. Underlying Facts.

Complaining of urinary urgency and frequency,

Gonzalez sought treatment from Dr. Salem Shahin, a

urologist at Mercy Medical Center in Williston, North

Dakota, and received a prescription to take an antibiotic, Bactrim, twice daily for a month, even though

testing indicated there was no infection for the antibiotic to address. App. 2a. Two weeks later, Gonzalez

returned to Mercy Medical, this time to the emergency

room for treatment for blurred vision, drainage from

his eyes, a sore throat, and plaque on his tongue. The

doctor who examined him, Dr. Richard Martin, did not

believe the Bactrim caused these symptoms because

there was no telltale rash. App. 3a. He instructed

Gonzalez to continue taking Bactrim, along with a

new prescription for conjunctivitis. App. 3a.

With no improvement occurring Gonzalez soon

went to the emergency room at McKenzie County Memorial Hospital, where he was seen by Jeffrey Adams,

PA-C and Ashlee Schaff, R.N. Even though Gonzalez

expressed the belief that he was having an allergic reaction to Bactrim, these medical personnel, again detecting no rash, advised that it would be unwise to discontinue Bactrim. App. 3a.

The following morning Gonzalez was back at the

Mercy Medical emergency department, complaining

of worsening pain and displaying a visibly swollen

face, throat, and eyes. Dr. Carol Gilmore diagnosed

Gonzalez with bilateral conjunctivitis, a tonsil infection, and an infection of the gums, administered an IV

antibiotic for that condition, and discharged Gonzalez

with instructions to continue taking Bactrim. App. 3a4a.

Gonzalez returned a day later, again seeing Dr.

Gilmore, who consulted with Dr. Paul Andelin. This

visit, the rash associated with Stevens–Johnson Syndrome (SJS) was visible, and on August 2, Dr. Andelin

diagnosed Gonzalez with SJS resulting from the Bactrim and admitted him to the hospital. App. 4a. SJS is

a rare, acute, serious, and potentially fatal disorder of

the skin and mucous membranes that is usually a reaction to medication and starts with flu-like symptoms, eye problems, and is followed by a painful rash

that spreads and blisters.

On August 3 from his hospital bed, Gonzalez

called 911 and was subsequently flown by air ambulance to the Burn Unit at the University of Colorado

Hospital in Denver, where he underwent eye surgery

and spent three weeks in treatment for SJS.

B. Proceedings Below.

1. District Court.

Gonzalez brought a medical-malpractice action,

alleging that the defendant health-care providers misdiagnosed him and negligently kept him on Bactrim,

which caused him to develop SJS. Central to his theory of medical negligence was the undisputed failure

of each defendant to consult the readily available Physician’s Desk Reference (PDR), a widely used compendium of drug information that is “published annually

and supplemented quarterly,” “distributed to the medical profession free of charge, at the expense of the

drug manufacturers,” and can be “prima facie evidence of the standard of care in using the drug.” 82

A.L.R.4th 166 (Originally published in 1990) (emphasis added).

Upon admission of the warning label in the PDR,

the district court instructed the jury, in accordance

with consultation with the parties, that the warning

label did not constitute conclusive evidence of the

medical providers’ standard of care but was relevant

to establishing the standard of care and the jury’s determination of whether any provider fell below the

standard of care.

Following that agreed-upon instruction, the judge

added additional commentary of his own, which he described to the jury as “an additional instruction.” App.

27a. The judge told the jury that he was concerned

that they might give the label too much weight, also

noted that most courts do not usually permit the label

to go back into the jury room in order to prevent overreliance on it. The court then added:

Keep in mind these are written by drug companies and lawyers that include all sorts of information to protect principally drug companies from having a lawsuit like this; so they'll

include all sorts of information in those documents. Because if they know of a concern and

they don’t put it into an insert like that and

they have a lawsuit as a result, it’s a case that

I'm sure [plaintiff’s counsel] Mr. Leventhal

would love to take on behalf of somebody who

is injured as a result of that type of conduct.

So keep it in perspective.

App. 28a.

The Court rejected an objection that the “additional instruction” was prejudicial and diminished the

import and purpose of the label by introducing “evidence” that the primary purpose of the label was to

protect drug companies, an assertion that did not reflect any evidence in the record. See App. 29a (objecting because the comment “introduced to the jury evidence which is not endorsed from any expert witness”). Orally, the court rejected the objection by describing it merely as “a matter of common sense” and

therefore appropriate and available for defense counsel to use, presumably in closing argument. App. 30a.

When counsel continued to argue, the district court instructed counsel to appeal. App. 30a-31a. The jury

subsequently returned defense verdicts on November

18, 2021, with judgment being entered the following

day. App. 5a, 35a.

Plaintiffs’ counsel moved for and the district court

granted, without objection, an extension of time to file

a motion for a new trial by January 13, 2022. App. 5a6a. In denying the motion in a written order filed April

27, 2022, the district court denied that “specific objection” about the Bactrim warning or about trial counsel

was voiced when the comments at issue were made1

and reviewed under a plain-error rule. In ruling, the

district court said its “comment on drug companies’

avoiding liability was . . . appropriate,” citing a New

Jersey Supreme Court opinion that said that

“limit[ing] the manufacturer’s liability” was one of

“many reasons” manufacturers write these warnings.

App. 19a (citing Morlino Medical Center of Ocean

County, 152 N.J. 563, 706 A.2d 721, 729 (N.J. 1998)).

The district court further excused its comment,

saying that it was harmless to say plaintiffs’ counsel

had a “desire to sue a drug manufacturer,” noted it

took only “a matter of seconds during the course of a

twelve-day complex medical malpractice jury trial,”

1 Counsel chose to make objection outside the jury’s presence be-

cause the jury had seen numerous prior objections and counsel

feared further antagonistic comments from the court. At the time

the objection was made and denied, the district court said that it

was preserved for appeal. App. 30a.

and claimed it “was also a joke.” App. 19a-20a. The

court also dismissed the comments by further stating,

that, “assuming it was [inappropriate], or maybe it

was a bade [sic] joke,” no evidence shows it impacted

the jury’s decision or prejudiced his case in any way.”

App. 20a. The court also claimed the potential prejudicial impact “was also effectively cured by the Court

in the final instructions,” where the judge told the jury

that “I have not intended to suggest what I think your

verdict should be.” App. 20a.

2. Court of Appeals.

The Eighth Circuit held it lacked jurisdiction to

review the original judgment because Gonzalez’s Rule

59 motion was untimely, having been filed under the

district court’s order more than 28 days after entry of

judgment. It cited Fed. R. Civ. P. 6(b)(2) in support

because the rule states that a “court must not extend

the time to act under” Rule 59(b). App. 7a. The Court

ruled that the extension to file the motion “was

granted in error.” App. 7a.

The Court acknowledged that defendants did not

object to the extension and that Rule 6(b) “is a nonjurisdictional rule subject to forfeiture,” App. 7a-8a, but

that

means only that the district court had the authority to rule on Gonzalez’s Rule 59 motion.

It does not mean that we have jurisdiction to

review the underlying judgment.

App. 8a.

On the comments made by the district court,

which the Eighth Circuit held were properly before it

on review of the court’s denial of a motion for a new

trial, that court recognized that any expression of

opinion by the judge must be fair and impartial and

“‘not preclude a fair evaluation of the evidence by the

jury.’” App. 10a (citation omitted). It further

“acknowledge[d]” Gonzalez’s concerns” and labeled

the comments “ill-advised,” but, “after considering

‘the complete charge to the jury,’” held no abuse of discretion occurred. App. 11a.

It stated that the comment about counsel was a

single remark and Gonzalez did not explain how it affected the outcome of the trial. App. 11a. Without

more, it held “we cannot conclude that this remark

was sufficiently pervasive or that it resulted in a miscarriage of justice.” The court affirmed.

Rehearing en banc was denied on September 21,

2023. App. 32a.

REASONS FOR GRANTING THE PETITION

A claim-processing rule does not become jurisdiction-denying for purposes of review of the underlying

judgment, but shed that status to review post-judgment rulings. The same set of facts and the same filings cannot generate such significant differences

about jurisdiction.

This Court has made clear that claim-processing

rules do not implicate jurisdiction and are subject to

waiver or forfeiture. That holding vanishes in the circuits when, as here, Rule 6(b)(2) is invoked, but no

amount of alchemy changes the rule’s providence so

that it acquires statutory status and becomes jurisdictional in nature.

The circuits’ evident confusion becomes tangible

when they treat the Rule’s time requirement depending on what decision is the subject of appeal, the underlying judgment or a post-judgment ruling. Yet, if

rules-based time requirements are truly claim-processing obligations subject to waiver, the treatment

should be uniform regardless of the appellate topic

and should never implicate the appellate court’s jurisdiction, especially when this Court has strained to

prevent that misuse.

The resulting inconsistency, contrary to this

Court’s recent precedents, warrants this Court’s review. Often, the same issues for appeal appear in the

underlying judgment and a post-judgment motion.

But when a court entertains only the latter, it engages

in a less searching review standard, thereby diminishing the value of the appeal.

The need for closer appellate scrutiny than the review undertaken by the Eighth Circuit permitted becomes obvious when considering the second Question

Presented, where the Eighth Circuit excused the significant adverse “additional instruction” the judge

gave to the jury, conveying his own views about a critical piece of evidence that was at odds with both the

record and with its legal import. A later generic instruction about the jury making its own decision

about the evidence could hardly be deemed curative,

but the standard of review for a post-trial motion

allowed the Eighth Circuit to let it slide. Not only does

the approach adopted by the Eighth Circuit create license for commentary by judges that will make trials

less fair and less impartial, but it takes an approach

that other circuits have deemed too cavalier. The situation calls for further guidance from this Court.

THIS CASE PRESENTS A NEW APPLICATION OF A RECURRING ISSUE THAT THIS

COURT HAS ATTEMPTED TO CLARIFY BEFORE AND THAT REMAINS OF GREAT NATIONAL IMPORTANCE.

Although this Court has decided cases about the

proper timing of a notice of appeal and when, under

both statutory and civil rules time requirements, a

late filing deprives a circuit court of jurisdiction and

when it does not, the timing issue when expressed in

a civil rule continues to bedevil the circuits and confuse counsel. While it is clear that erroneous district

court orders extending the filing deadline contained in

a statute cannot remove the jurisdictional bar to hearing the appeal, Bowles v. Russell, 551 U.S. 205, 21013 (2007), the non-jurisdictional status of time requirements in civil rules has proven intractably difficult for the lower courts, although it need not be.

Nowhere is that confusion on clearer display than

the differential treatment of appellate jurisdiction after post-judgment motions for purposes of plenary appeal and for appeal of the denial of the new motion.

Fed. R. App. P. 4(a)(1)(A) generally gives counsel 30

days after entry of the judgment or order appealed

from to file a notice of appeal. Fed. R. App. P.

4(a)(4)(A) extends the time to file when certain postjudgment motions, including a motion for a new trial,

are filed. Then, the time for a notice of appeal is measured from the entry of an order disposing of the motion. Fed. R. Civ. P. 6(b)(2) does not authorize extensions of time for those post-judgment motions, but

courts still enlarge the time.

The timing requirements in the civil rules constitute claim-processing rules, which this Court has described as “not jurisdictional,” even when mandatory.

See Cameron v. EMW Women's Surgical Ctr., P.S.C.,

595 U.S. 267, 275 (2022). Yet, the decision below

holds, and other circuits continue to hold, inappropriately, that they deprive a court of appellate jurisdiction. This case presents an excellent vehicle to resolve

the continuing controversy.

A. This Court’s Repeated Efforts to Clarify

the Applicable Law Demonstrates the

National Importance of the Issue.

Despite the seeming clarity of the holding in

Bowles, this Court has recognized that significant confusion exists, both in its own decisions and those of the

lower courts, about the distinction between statutory

and rules’ deadlines. The latter are “mandatory and

jurisdictional.” Bowles, 551 U.S. at 209. The former

are claim-processing rules, subject to waiver or forfeiture. Hamer v. Neighborhood Housing Serv. of Chicago, 583 U.S. 17, 19-20 (2007). Decisions at all levels

were often “‘mischaracteriz[ing] claim-processing

rules or elements of a cause of action as jurisdictional

limitations.” 583 U.S. 17, 20 (2017) (ellipsis in orig.)

(quoting Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154,

161 (2010)). Despite Reed’s earlier acknowledgment of

the problem, the mischaracterization remains unabated. Hamer explained that “[s]everal Courts of Appeals . . . have tripped over our statement in Bowles

that ‘the taking of an appeal within the prescribed

time is ‘mandatory and jurisdictional.’” Id. at 26 (quoting Bowles, 551 U.S. at 209, quoting Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982)

(per curiam)).

Thus, in Hamer, this Court once again clarified

the difference by declaring that Fed. R. App. P.

4(a)(5)(C)’s 30-day limitation on extensions of time to

file a notice of appeal was a claim-processing rule that

was subject to forfeiture in the absence of an objection.

Id. at 27. That status meant that the timing requirement was not jurisdictional. Id.

The confusion, however, continues today, and is

especially acute with respect to Fed. R. App. P.

4(a)(4)(A) and its treatment of motions for a new trial.

As Reed Elsevier observed, the differences between jurisdictional limits and those subject to waiver, “[w]hile

perhaps clear in theory . . . can be confusing in practice.” 559 U.S. at 161. The decision below, and those of

sister circuits, reflect that difficulty because the decision treats the confluence of applicable rules as jurisdictional. Many circuits adhere to their pre-Hamer

precedents.

In this case, even though the new-trial motion was

filed within the time ordered by the district court

without objection from Respondents, the Eighth

Circuit held that the rule limiting the time for extensions rendered it and the notice of appeal untimely,

depriving the court of jurisdiction. App. 7a. It thus

treated a claim-processing rule to which there was no

defense objection the same as a statutory limit, in conflict with the teachings of this Court in Bowles and

Hamer, tripped up, it seems, by the application of two

rules simultaneously. The Eighth Circuit, like several

other circuits, confused permission to file late under

the statutory rule with permission to file late under

the procedural rule as jurisdictionally significant. Yet,

in reviewing the appeal of the new-trial motion, the

Eighth Circuit permitted the same confluence of rules

to yield the opposite result for purposes of reviewing

the district court’s new-trial ruling. The two rulings

within the same decision cannot be reconciled.

B. The Internal Contradiction in the Treatment of the Notice of Appeal as Jurisdiction-Depriving for One Purpose and Jurisdictionally Insignificant for Another

Is an Artifact of an Earlier, Now-Abandoned Jurisprudence that Only this

Court Can Correct.

Today’s approach, contrasting statutory and

rules-based time requirements for their jurisdictional

implications, marked a departure from earlier decisions that had misused the term “jurisdiction.” See

Reed Elsevier, 559 U.S. at 161. Before this Court’s

more recent efforts, the cases were legion in holding

that the rule’s 30-day time limit on a notice of appeal

was “mandatory and jurisdictional.” Thus, for example, in 1978 relying on cases as old as the civil rules

themselves, this Court held that an untimely filing

under the civil rules “could not toll the running of time

to appeal under Rule 4(a),” and left the court of appeals without jurisdiction to review the case. Browder

v. Dir., Dep’t of Corr. of Ill., 434 U.S. 257, 265 (1978).

Yet, Hamer found that “[s]everal Courts of Appeals, including the Court of Appeals in Hamer’s case,

have tripped over our statement . . . that “the taking

of an appeal within the prescribed time is ‘mandatory

and jurisdictional,’” and mistakenly applying a “characterization left over from days when we were ‘less

than meticulous’ in our use of the term ‘jurisdictional.’” 583 U.S. at 26-27 (citations and footnote omitted). Still, Hamer held

“mandatory and jurisdictional” is erroneous

and confounding terminology where, as here,

the relevant time prescription is absent from

the U.S. Code. Because Rule 4(a)(5)(C), not

§ 2107, limits the length of the extension

granted here, the time prescription is not jurisdictional.

Id. at 27.

Unfortunately, artifacts of the earlier caselaw

continue to plague decisions in the lower courts, resulting in an illogical treatment of how post-judgment

motions, untimely filed under the rule but in compliance with a court order and without an adversarial

objection, are treated, non-jurisdictional claim-processing requirements for notices of appeal for some

purposes but not for others. The conflicting treatment

of the same filing for the purpose of noticing an appeal

is at odds with the modern approach to treating statutory deadlines only as jurisdiction-barring.

C. This Court’s Attempts to Curb the Misuse

of “Jurisdiction” Have Gone Unheeded.

In 2007, Bowles addressed when a late notice of

appeal deprives an appellate court of jurisdiction and

held that statutory time limits were jurisdictional requirements, leaving courts with “no authority to create equitable exceptions.” 551 U.S. at 214. Bowles also

acknowledged that “recent decisions have undertaken

to clarify the distinction between claim-processing

rules and jurisdictional rules.” Id. at 210. One of those

decisions, emphatically stated that “[c]larity would be

facilitated if courts and litigants used the label ‘jurisdictional’ not for claim-processing rules, but only for

prescriptions delineating the classes of cases (subjectmatter jurisdiction) and the persons (personal jurisdiction) falling within a court's adjudicatory authority.” Kontrick v. Ryan, 540 U.S. 443, 455 (2004).

Despite what Bowles said, the distinction drawn

between statutory and rules-based deadlines continued to (and still continues to) baffle courts.2 A mere

three years after Bowles, in Reed Elsevier, this Court

conceded that the differences between the two “can be

confusing in practice.” 559 U.S. at 161.

Shortly after expressing that concern, this Court

held that the Federal Circuit misapplied Bowles and

2 In addition to the Eighth Circuit’s holding in this case, at least

six other circuits continue to treat Rule 4’s thirty-day time limit

as jurisdictional. See pp. 25-27 infra.

erroneously treated as jurisdictional the 120-day

deadline for filing an appeal for a disability claim in

Veterans Court. Henderson ex rel. Henderson v.

Shinseki, 562 U.S. 428 (2011). The Court explained

that “Bowles did not hold categorically that every

deadline for seeking judicial review in civil litigation

is jurisdictional.” Id. at 436.

Even after that correction, this Court again had to

remind other courts that “[t]o ward off profligate use

of the term ‘jurisdiction,’ we have adopted a ‘readily

administrable bright line’ for determining whether to

classify a statutory limitation as jurisdictional.” Sebelius v. Auburn Reg'l Med. Ctr., 568 U.S. 145, 153

(2013) (quoting Arbaugh v. Y&H Corp., 546 U.S. 500,

516 (2006)).

Then, in Hamer in 2017, this Court sought to clarify the distinction between statutory and rules-based

time requirements yet again, given continued misuse

of the relevant terminology in the lower courts. 583

U.S. at 19. It reiterated that an appeal noticed outside

the time period set by statute was jurisdictionally defective and “not subject to waiver or forfeiture.” Id. at

17. Still, this Court held “‘mandatory and jurisdictional’ is erroneous and confounding terminology

where, as here, the relevant time prescription is absent from the U.S. Code.” Id. at 27. Instead, because

“Rule 4(a)(5)(C), not § 2107, limits the length of the

extension granted here, the time prescription is not

jurisdictional.” Id.

In Hamer, the plaintiff was granted, without objection from the defendants, a two-month extension of

the notice-of-appeal filing date just six days before the

original deadline was due to expire, even though Fed.

Rule App. Proc. 4(a)(5)(C) limited such extensions to

30 days. Id. at 21. Because the extension was made

without objection, the time limit contained in otherwise mandatory claim-processing rules was deemed

waived or forfeited, rendering the Seventh Circuit’s

decision that it deprived that court of jurisdiction erroneous. Id. at 20.

Here, as the Seventh Circuit held and was reversed in Hamer, the Eighth Circuit stated that a

court-granted extension for filing a motion for a new

trial motion that was unauthorized by the rules, deprived it of jurisdiction so it could not address the

principal appeal, but could hear an appeal about the

denial of a new-trial. It did so even while acknowledging that the violation was of a “nonjurisdictional rule

subject to forfeiture,” and to which the defendants had

raised no objection. App. 7a-8a. The Eighth Circuit

felt compelled nonetheless to label this rules-based

timing issue “jurisdictional” because of its reading of

an in-circuit, pre-Hamer precedent, Arnold v. Wood,

238 F.3d 992, 995, 998 (8th Cir. 2001). Arnold held

that a post-judgment motion that would otherwise toll

the period for filing a notice of appeal was untimely

under Rule 4 and therefore deprived the court of jurisdiction. That holding is at odds with Hamer and this

Court’s other more recent precedents that take pains

to explain the inapplicability of “jurisdiction” to claimprocessing rules and should not have compelled that

result.

In Arnold and the decision below, the Eighth Circuit made a distinction between the underlying judgment and the issues raised in the new-trial motion.

Yet, if, as a claim-processing rule it was waived for one

purpose, it was waived for all purposes. The only logical explanation is that Arnold and its progeny exemplify one of the misuses of the term “jurisdiction” that

this Court has condemned. That this artifact of an erroneous jurisprudence stalks the process of appeals of

right, even as this Court has attempted to bring more

clarity to the issue to be of great national importance,

which only this Court can resolve.

D. The Decision Below Deepens the Conflict

in the Circuits.

The circuits are in deep and irreconcilable conflict

about the issues the Eighth Circuit addressed in this

case. At least three circuits have indicated that this

Court’s modern approach to claim-processing rules

would permit an untimely post-judgment motion to allow a subsequent appeal of the underlying judgment.

Four circuits have adopted an approach that conforms

to the Eighth Circuit’s ruling, finding that the untimely post-judgment motion deprived the court of the

ability to hear the underlying appeal, with some labeling the bar “jurisdictional,” despite this Court’s instructions to the contrary. And, three circuits continue

to hold that the time period in the rule is jurisdictional, providing a complete bar to hearing an appeal,

even though Hamer holds otherwise. The circuit split

will not be resolved without this Court’s intervention

and has percolated long enough.

1. Three circuits hold that an improperly extended time to file a post-judgment motion

does not deprive a court of jurisdiction.

The Eighth Circuit’s decision declaring a jurisdictional bar to a notice of appeal on the underlying judgment when the appellant relies on an untimely postjudgment motion, despite a court’s permission and an

opposing party’s acquiescence, stands in stark contrast to decisions and analysis from at least the District of Columbia, Second, and Sixth Circuits, all of

which found this Court’s more recent jurisprudence

compelled the opposite conclusion.

In Obaydullah v. Obama, 688 F.3d 784 (D.C. Cir.

2012) (per curiam), the D.C. Circuit held that an extension of time granted in violation of Rule 6(b)(2) did

not deprive the court of jurisdiction over the subsequent appeal because the violation was of a claim-processing rule subject to waiver, rather than a statutory

bar on jurisdiction. Id. at 788.

The Second Circuit has adopted a similar analysis

to that of the D.C. Circuit. It noted that the circuit had

once held that time limits in the civil rules were jurisdictional, but now understands this Court’s decisions

render them “non-jurisdictional, claim-processing

rules” that are “subject to waiver or equitable exception.” Legg v. Ulster Cnty., 820 F.3d 67, 78-79 (2d Cir.

2016). Their unobjected-to violation provides “no bar

to jurisdiction . . . even though the district court was

without authority to grant an extension under Rule

6(b)(2).” Id. Notably, in a second appeal of the same

case, the court held that relief for violation of claim-

processing

rules

afforded

only

to a party properly raising them, but do not compel

the same result if the party forfeits them.” Legg v. Ulster Cnty., 979 F.3d 101, 111 (2d Cir. 2020).

The 2016 decision said the circuit was joining

every circuit to have considered the question up to

that time to hold that Rule 6(b)’s restriction on granting extensions was not jurisdictional. Id. at 79.3 Yet,

as its inclusion of the Eighth Circuit in that list

demonstrates, the concept remains “confusing in practice.” as Reed Elsevier noted. 559 U.S. at 161.

While Legg appears to suggest that the Second

Circuit would rule differently than the Eighth Circuit

did about reviewing the underlying judgment rather

than only the post-judgment ruling, a decision one

year earlier enhances that supposition. In Weitzner v.

Cynosure, Inc., 802 F.3d 307, 312 (2d Cir. 2015), the

court held that “Rule (a)(4)(A)(vi)’s 28-day time limit

should be deemed a claim-processing rule that allows

for equitable exceptions,” in a case where the postjudgment motions were late due to compliance with a

local rule.

3 In support of the proposition, the Second Circuit cited Mobley

v. C.I.A., 806 F.3d 568, 577 (D.C. Cir. 2015); Blue v. Int’l Brotherhood of Elec. Workers Local Union 159, 676 F.3d 579, 584-85

(7th Cir. 2012); Advanced Bodycare Sols., LLC v. Thione Int’l,

Inc., 615 F.3d 1352, 1359 n.15 (11th Cir. 2010); Art Attacks Ink,

LLC v. MGA Entm’t Inc., 581 F.3d 1138, 1142-43 (9th Cir. 2009);

Dill v. Gen. Am. Life Ins. Co., 525 F.3d 612, 618-19 (8th Cir.

2008); Nat’l Ecological Found. v. Alexander, 496 F.3d 466, 474

(6th Cir. 2007).

Finally, among this group of circuits, the Sixth

Circuit held that it could exercise jurisdiction over an

appeal, albeit a denial of a post-judgment motion, because the “time limits set by Rules 6 and 59(e) constitute an affirmative defense to an untimely Rule 59(e)

motion, which the party opposing the motion is capable of forfeiting.” Nat'l Ecological Found. v. Alexander,

496 F.3d 466, 474 (6th Cir. 2007).

More recently, the Sixth Circuit made clear that

Nat’l Ecological remains the law of the circuit and

stands for the proposition that an untimely Rule 59

motion tolls Rule 4’s thirty-day limit regardless of the

nature of the appeal, contrasting its decision with

those of circuits that rejected the same premise. See

Wallace v. FedEx Corp., 764 F.3d 571, 584 & n.7 (6th

Cir. 2014).

2. Four circuits, in addition to the Eighth

Circuit here, hold that an untimely postjudgment motion fails to permit an appeal

of the underlying judgment.

Joining the Eighth Circuit in holding an untimely

post-judgment motion robs a court of jurisdiction or

appellate authority on the underlying judgment are

the First, Third, Seventh, and Tenth Circuits.

While no recent decision of the First Circuit explores this territory, the leading precedent holds that

if a Rule 59 motion itself is untimely, the court will

not toll the appeals limitations period.” Feinstein v.

Moses, 951 F.2d 16, 18 (1st Cir. 1991); see also

Vaqueria Tres Monjitas, Inc. v. Comas-Pagan, 772

F.3d 956, 958 (1st Cir. 2014).

The Third Circuit also held that a district court’s

“erroneous consideration of an improper or untimely

[post-judgment] motion cannot alter the timeliness requirements of Federal Rule of Appellate Procedure

4(a).” State Nat’l Ins. Co. v. Cnty. of Camden, 824 F.3d

399, 409-10 (3d Cir. 2016).

In the Seventh Circuit, the same approach

adopted by the Eighth Circuit in this case prevails.

There, an untimely post-judgment motion will not toll

the time available to appeal from the underlying judgment but allows an appellate court to review the postjudgment orders. Blue v. Int’l Bhd. of Elec. Workers

Loc. Union 159, 676 F.3d 579, 584 (7th Cir. 2012).

Explicitly rejecting the D.C. Circuit’s ruling in

Obaydullah, the Tenth Circuit found the dissenting

opinion there persuasive, holding that “untimely postjudgment motions cannot toll the period in which to

file a notice of appeal even where an opposing party

does not object on timeliness grounds or the district

court disposes of the motion on the merits.” In re Robertson, 774 F. App'x 453, 465 (10th Cir. 2019); see also

Bunn v. Perdue, 966 F.3d 1094, 1098 (10th Cir. 2020).

3. Four circuits continue to view compliance

with Rule 4’s thirty-day rule as jurisdictional.

Another four circuits, despite Hamer, continue to

treat Rule 4’s thirty-day rule to be a jurisdictional bar

on hearing an appeal. On that basis, the Fourth, Fifth,

Ninth, and Eleventh Circuits would presumably find

no jurisdiction to hear an appeal of either the

underlying judgment or the post-judgment rulings

based on an untimely filing.

Just last year, the Fourth Circuit continued to call

the timely filing of an appeal a “jurisdictional requirement.” Shuler v. Orangeburg Cnty. Sheriff's Dep’t, 71

F.4th 236, 240 (4th Cir. 2023).

Recently, the Fifth Circuit flatly declared that the

“timeliness [of a notice of appeal] is jurisdictional.”

Ueckert v. Guerra, 38 F.4th 446, 453 (5th Cir. 2022);

see also Overstreet v. Joint Facilities Mgmt., L.L.C.,

496 Fed. App’x 421, 424 (5th Cir. 2012) (per curiam)

(untimely Rule 59(e) motion did not toll the notice of

appeal period, even if the district court addressed the

late-filed motion on the merits).

In fact, the Fifth Circuit, joined by the Ninth Circuit, regards Rule 4’s thirty-day time limit to be rooted

in statute and thus still jurisdictional under Bowles.

See Frew v. Young, 992 F.3d 391, 395 (5th Cir. 2021);

Nutrition Distribution LLC v. IronMag Labs, LLC,

978 F.3d 1068, 1072 (9th Cir. 2020).

And, the Eleventh Circuit appears to adhere to

pre-Hamer holdings as well and would deny also jurisdiction. It holds that a timely notice of appeal in a

civil case is a jurisdictional requirement and that untimely post-judgment motions will not toll the time for

filing an appeal. Ruiz v. Wing, 991 F.3d 1130, 1137–

38 (11th Cir. 2021) (relying on Green v. DEA, 606 F.3d

1296, 1300 (11th Cir. 2010)).

The split among the circuits, evincing the same

problem with understanding the application of

jurisdiction that this Court has sought to correct,

makes the Question Presented eminently certworthy.

II. THE JURISDICTIONAL RULING OF THE

COURT BELOW IS WRONG.

Hamer makes clear that time requirements in the

civil rules constitute mandatory claim-processing

rules that are “less stern” than congressionally set

deadlines. 583 U.S. at 20. They may require mandatory compliance when invoked, “but they may be

waived or forfeited.” Id. (citation omitted). Under

party-presentation principles, they provide “relief to a

party properly raising them, but do not compel the

same result if the party forfeits them.” Id. (citation

omitted). On the other hand, subject-matter jurisdictional prerequisites, as set by statute, may be raised

at any time, and “federal courts have an independent

obligation to ensure that they do not exceed the scope

of their jurisdiction, and therefore they must raise and

decide jurisdictional questions that the parties either

overlook or elect not to press.” Shinseki, 562 U.S. at

434.

Although Rule 4 creates a 30-day limit on the filing of a notice of appeal, the rule also ameliorates that

requirement so that certain post-judgment motions,

like a motion for a new trial, when “seasonably made

and entertained,” delays the time for appeal so it “does

not begin to run until the disposition of the motion.”

Leishman v. Associated Wholesale Elec. Co., 318 U.S.

203, 205 (1943). The language found in the rule permitting it has a venerable lineage. See Brockett v.

Brockett, 43 U.S. (2 How.) 238, 241 (1844).

Then, where no objection is assayed to the timing

of the post-judgment motion, it is “seasonably made,”

and provides no justification for a decision that asserts its timing deprives a court of appellate jurisdiction, particularly because Hamer makes plain that jurisdiction is not implicated by time requirements in

the civil rules. 583 U.S. at 19.

To be sure, the Eighth Circuit found support for

its jurisdictional ruling in the Advisory Note accompanying Rule 4, which the court said established that

“the time within which to file a notice of appeal under

Rule 4 ‘is not altered by, for example, a court order

that sets a due date that is later than permitted by the

Civil Rules’ or a party’s ‘failure to object to the motion’s lateness.’” App. 8a (quoting Fed. R. App. P. 4 advisory committee’s note to 2016 amendments (emphasis removed).

Yet, that observation by the Advisory Committee

does not render the rule’s timeline jurisdictional, as

the Eighth Circuit held. After all, “it is axiomatic that

the Federal Rules of Civil Procedure do not create or

withdraw federal jurisdiction.” Owen Equipment &

Erection Co. v. Kroger, 437 U.S. 365, 370 (1978).

Moreover, the note has only persuasive value. As

the original advisory committee stated in its first set

of notes:

The notes are not part of the rules, and the

Supreme Court has not approved or otherwise

assumed responsibility for them. They have

no official sanction, and can have no

controlling weight with the courts, when applying the rules in litigated cases.

Quoted in Henry P. Chandler, Some Major Advances

in the Federal Judicial System 1922-1947, 31 F.R.D.

307, 503 (1963).

That persuasive value entirely dissipates in light

of Hamer, which was rendered after the notes quoted

by the Eighth Circuit.

As a practical matter, the bar imposed by the

Eighth Circuit makes little sense. It would compel

parties to file a notice of appeal after an adverse judgment, even while awaiting a decision on a motion for

a new trial, which if granted would moot the appeal.

If the court, as the district court in this case, took

months to decide the new-trial motion, it could lose

jurisdiction over the case to the court of appeals,

which would then unnecessarily decide the same issues that the district court likely could have resolved.

See Griggs v. Provident Consumer Discount Co., 459

U.S. 56, 58-59 (1982) (per curiam) (holding that “[t]he

filing of a notice of appeal . . . divests the district court

of its control over those aspects of the case involved in

the appeal” because of the “danger a district court and

a court of appeals would be simultaneously analyzing

the same judgment.”).

Finally, the ruling would encourage yet another

departure from the rationale behind the final-judgment rule contained in u, which is intended to “promote[] efficient judicial administration while at the

same time emphasizing the deference appellate courts

owe to the district judge’s decisions on the many

questions of law and fact that arise before judgment.”

Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 430

(1985). The Eighth Circuit’s approach would encourage piecemeal appeals, something that is contrary to

federal legal policy. Switzerland Cheese Ass’n, Inc. v.

E. Horne’s Mkt., Inc., 385 U.S. 23, 24 (1966). The issues, likely to be duplicative, may readily be resolved

by the district court in a way that makes an appeal

unnecessary. Thus, both law and policy rebel against

the Eighth Circuit’s approach.

III. THE DECISION BELOW ON THE IMPACT

OF THE JUDGE’S EVIDENCE-DENIGRATING “ADDITIONAL INSTRUCTION” IMPLICATES THE NATION’S DRUG-SAFETY REGIME AND DUE PROCESS, MAKING IT AN

ISSUE OF NATIONAL IMPORTANCE.

The district court made plain to the jury at the

time it was obtaining its first impression of the warnings available for Bactrim, the drug responsible for

Gonzalez’s injuries, that there was a danger the jury

would accord the warning too much weight. After giving the agreed-to instruction, the judge gave an “additional instruction” that they should not give too much

weight to the warning label, that most judges withhold the warning label from the jury room, to avoid

that consequence, and that they labels are written,

not to help doctors as much as to predatory lawyers,

like that of the plaintiff, from suing the drug manufacturers. App. 20a.

In doing so, the judge introduced evidence of his

own making, prejudiced the jury, undermined the

central premise of the case, encouraged the defense

lawyers to make use of the comments, which they did

by claiming no doctor consults those warnings. He

overstepped his authority. He further undermined the

regulatory regime that assures drug safety, implicating much more than medical malpractice trials.

A. The Additional Instruction Was At Odds

with the Nation’s Drug Safety Regime.

Congress has long insisted on an extensive testing

regime to assure the safe use of pharmaceutical drugs

by enacting the Federal Food, Drug, and Cosmetic Act

(FDCA), ch. 675, 52 Stat. 1040, as amended, 21 U.S.C.

§ 301 et seq. Wyeth v. Levine, 555 U.S. 555, 566 (2009).

Since 1962, Congress has placed the burden on manufacturers “to demonstrate that its drug was ‘safe for

use under the conditions prescribed, recommended, or

suggested in the proposed labeling’ before it could distribute the drug.” Id. at 567. That responsibility was

further enhanced in 2007, when Congress granted the

Food and Drug Administration statutory authority to

require a manufacturer to change its drug label based

on safety information that becomes available after a

drug’s initial approval. Id.

Detailed regulations require that a drug’s label

contain recommended dosages, note critical differences among population subsets, as well as provide

other clinically significant clinical pharmacologic information, contraindications, and warnings and precautions that include “information that would affect

decisions about whether to prescribe a drug, recommendations for patient monitoring that are critical to

safe use of the drug, measures that can be taken to

prevent or mitigate harm,” and a “list of the most frequently occurring adverse reactions, . . . along with

the criteria used to determine inclusion (e.g., incidence rate).” 21 C.F.R. § 201.57(7)-(11); see also 21

U.S.C. §§ 355(b), (d). A drug’s label must bear “such

adequate warnings against use . . . as are necessary

for the protection of users.” 21 U.S.C. § 352(f)(2).

The information produced and the warnings required for prescription drugs are largely intended for

use by medical professionals so that they can gauge

the appropriateness of prescribing a drug in any particular situation. Under the “learned intermediary”

doctrine, the vast majority of states treat that information as necessary for physicians, rather than patients. See Centocor, Inc. v. Hamilton, 372 S.W.3d 140,

158 (Tex. 2012) (listing decisions in 35 states adopting

the doctrine, and then adding Texas to that list). Typically, where the learned intermediary doctrine prevails, a doctor’s deviation from the warning labels is

treated as “prima facie evidence of negligence.”

Mulder v. Parke Davis & Co., 181 N.W.2d 882, 887

(Minn. 1970). Although the number of states adopting

the doctrine has since expanded, even in states that

have not adopted the learned intermediary doctrine,

such as North Dakota, the jurisdiction at issue in the

instant case, a physician’s deviation from a drug’s instructions can constitute prima facie evidence of negligence. See Winkjer v. Herr, 277 N.W.2d 579, 585

(N.D. 1979); cf. 82 A.L.R.4th 166.

The district court’s comments instead told the jury

that the label’s only purpose was to avoid liability.

B. The Comments Implicated Due Process.

Although the judge described his statement to the

jury as an “additional instruction,” they constituted

comments on the evidence. This Court has recognized

that judicial commentary on the evidence is a

longstanding tradition at common law that allows a

judge to call attention to key components of the evidence and express certain opinions on the facts. Vicksburg & Meridian R. Co. v. Putnam, 118 U.S. 545, 553

(1886).

Nearly a century ago, however, Chief Justice

Hughes, writing for this Court, noted that a judge’s

comments have “inherent limitations,” must “be exercised in conformity with the standards governing the

judicial office,” and cannot “assume the role of a witness” or “distort [the evidence] or add to it.” Quercia v.

United States, 289 U.S. 466, 470 (1933). The Eighth

Circuit, relying on Quercia, understands that a

judge’s comments to a jury are “‘necessarily and

properly of great weight’” and “‘[their] lightest word or

intimation is received with deference, and may prove

controlling.’” United States v. Brandom, 479 F.2d 830,

835 (8th Cir. 1973) (quoting Quercia, 289 U.S. at 470);

see also Galloway v. United States, 319 U.S. 372, 400

(1943) (citing McLanahan v. Universal Ins. Co., 26

U.S. (1 Pet.) 170 (1828) (recognizing the outsized influence that judicial comments can have on juries).

Two constitutional imperatives apply. As Quercia

suggests, due process requires that a tribunal be a

neutral arbiter. See Marshall v. Jerrico, Inc., 446 U.S.

238, 242 (1980) (“The Due Process Clause entitles a

person to an impartial and disinterested tribunal in

both civil and criminal cases.”). Courts must strive for

“both the appearance and reality of fairness.” Id.; see

also In re Murchison, 349 U.S. 133, 136 (1955) (mandating the prevention of “even the probability of unfairness.”). Thus, impartiality is not just an aspirational objective but a constitutional command because

a “fair trial in a fair tribunal is a basic requirement of

due process.” Id.

The second constitutional imperative is the authority as judges of facts that the Seventh Amendment invests in juries. That constitutional assignment

of responsibility assures that juries make credibility

determinations, weigh evidence, and draw legitimate

inferences from the facts, not the judge. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Where a

judge undertakes that task, the impact and influence

on the jury is so significant that the jury is robbed of

its authority. To avoid invasion of the jury’s province,

one treatise on jury instructions advised that judicial

comments on the evidence or witness credibility is

permissible “but only after cautioning the jury that

they are the sole judges of the facts and are free to

disregard the comments of the court.” 1 Fed. Jury

Prac. & Instr. § 7:5 (6th ed.) (footnotes omitted).

Judge Weinstein expressed the belief that even

more is necessary. He wrote, a judge should “write out

his proposed remarks in advance, distribute copies to

the parties, and discuss them in a precharge conference before he lets the jury hear them. Jack B. Weinstein, The Power and Duty of Federal Judges to Marshall and Comment on the Evidence in Jury Trials

and Some Suggestions on Charging Juries, 118 F.R.D.

161, 170 (1988). He warned that even “well-intentioned and seemingly innocuous the judge's remarks”

can engender appellate issues. Id.

IV. The Eighth Circuit’s Finding a Generic Instruction about the Jury’s Responsibility to

Reach its Own Verdict Conflicts with More

Pointed Curative Instructions Required in

Other Circuits.

The Eighth Circuit, employing a clear abuse of

discretion standard because it chose only to review the

district court’s ruling about the comments in the context of the new-trial motion, held that the judge’s “illadvised” comments were cured by a basic instruction

that the jury should reach its own conclusions, including the import of the Bactrim label.” App. 10a. The

jury was not told that the judge’s opinions should not

influence them, as is common in other circuits.

A. Many Circuits Recognize Prejudice More

Handily or Require More Connected Curative Instructions.

Perhaps the conflict with the Eighth Circuit’s

holdings is most sharp with the Ninth Circuit. In a

defamation case that turned on the credibility of the

opposing parties, the court found that the trial judge

commentary self-evidently “was not a carefully balanced appraisal of the voluminous conflicting evidence” or the party’s credibility, and “went too far,”

becoming “in essence, a personal character reference

for the man.” Maheu v. Hughes Tool Co., 569 F.2d 459,

471, 472 (9th Cir. 1977).

The Ninth Circuit held that a jury instruction that

told the jury it was “free to disregard” the judge’s comments on the evidence “was not sufficient to cure the

error” because the timing of the comments likely had

a “strong impact” and left the court with “ no choice

but to reverse the judgment on the ground that the

trial court's one-sided characterization of [the favored

party] came close to directing a verdict in his favor,

thus denying [the disfavored party] a fair trial.” Id. at

471-72.

Similar rulings have occurred in the Second,

Fourth, and Fifth Circuits. See Bentley v. Stromberg–

Carlson Corp., 638 F.2d 9, 11 (2d Cir. 1981) (trial

judge’s comments to the jury gave all the arguments

for the defendant, being “tantamount to directing a

verdict” for defendant); Spencer v. Ashcroft, 147 F.

App’x 373, 375 (4th Cir. 2005) (“judge’s lengthy instructions, both at the beginning and end of the trial

[about ignoring judicial commentary that suggests

what the verdict should be “cured any prejudice that

might have arisen from these comments.”). The Fifth

Circuit requires that potential prejudice when a judge

comments be cured by “instructions to the jury both at

the beginning and at the end of the trial to ignore his

comments and to be the sole judge of the facts.” Johnson v. Helmerich & Payne, Inc., 892 F.2d 422, 426 (5th

Cir. 1990). In contrast, the Eighth Circuit allowed attenuated comments about the jury’s role without mention of the judge’s comments to suffice.

The standard utilized in the Eleventh Circuit,

while deferential to the judge, also requires a more

searching inquiry and more pointed curative instruction than the Eighth Circuit undertook. See United

States v. Hope, 714 F.2d 1084, 1088 (11th Cir. 1983)

(“[a] trial judge may comment upon the evidence as

long as he instructs the jury that it is the sole judge of

the facts and that it is not bound by his comments and

as long as the comments are not so highly prejudicial

that an instruction to that effect cannot cure the error.”).

B. The First Circuit Appears Far More Deferential, Much Like the Eighth.

The Eighth Circuit’s approach may be closest to

that of the First Circuit. That circuit generally holds

that an appellate “court must evaluate the judge’s actions ‘according to a standard of fairness and impartiality, recognizing that each case tends to be fact-specific.’” Logue v. Dore, 103 F.3d 1040, 1045 (1st Cir.

1997) (citation omitted). During the review process,

the court must “differentiate between expressions of

impatience, annoyance or ire, on the one hand, and

bias or partiality, on the other hand.” Id. Neither is

desirable, as “the former are not to be encouraged, the

latter are flatly prohibited.” Id.

In Logue, the court regarded accusations of hostility when the judge posed questions as overwrought,

reference to one party in the jury’s presence as “the

accuser” as “innocuous, particularly when its likely

impact is evaluated on the entire record,” and merely

expressing “grave doubts anent [the party’s]

credibility when the judge told the appellant outside

the jury’s presence that

I just want to put it on the record that I totally

disbelieve the plaintiff in this case. I think

he's an absolute and incorrigible liar. And it's

my intention at the conclusion of this case to

request the United States Attorney to conduct

an investigation into these matters relative to

seeking an indictment for perjury.

Id. at 1046.

As for the judge’s disparaging remarks about

counsel throughout the trial, the court found none “beyond the pale, . . . even if better left unsaid.” Id.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Jim Leventhal

Julia T. Thompson

Nathaniel E. Deakins

Leventhal Puga Braley

P.C.

950 S Cherry St.,

Suite 600

Denver, CO 80246

Robert S. Peck

Counsel of Record

Center for Constitutional

Litigation, PC

1901 Connecticut Ave.,

N.W., Suite 1008

Washington, DC 20009

(202) 944-2874

robert.peck@cclfirm.com

Counsel for Petitioner

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

EIGHTH CIRCUIT, FILED AUGUST 16, 2023 . . 1a

APPENDIX B — ORDER OF THE UNITED

S TAT E S DI S T R IC T C OU RT FOR

THE DISTRICT OF NORTH DA KOTA,

FILED APRIL 27, 2022 . . . . . . . . . . . . . . . . . . . . . . 16a

APPENDIX C — TRANSCRIPT EXCERPTS

FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF NORTH

DAKOTA, FILED JUNE 24, 2022 . . . . . . . . . . . . . 26a

A PPEN DI X D — OR DER OF T H E

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT, DATED

SEPTEMBER 21, 2023 . . . . . . . . . . . . . . . . . . . . . . . 32a

APPENDIX E — AMENDED JUDGMENT OF

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA,

FILED APRIL 27, 2022 . . . . . . . . . . . . . . . . . . . . . . 33a

A PPENDI X F — J U DGMENT OF THE

UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF NORTH DA KOTA,

FILED NOVEMBER 19, 2021 . . . . . . . . . . . . . . . . 35a

APPENDIX Appendix

A — OPINION

OF THE

UNITED STATES COURT OF APPEALS FOR THE

EIGHTH CIRCUIT, FILED AUGUST 16, 2023

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 22-2012

MARCO GONZALEZ,

Plaintiff-Appellant,

SALEM SHAHIN, MD; CAROL GILMORE, MD;

RICHARD MARTIN, MD; PAUL ANDELIN, MD;

JEFFREY ADAMS, PA-C; MERCY MEDICAL

CENTER; MCKENZIE COUNTY HEALTHCARE

SYSTEMS, INC.,

Defendants-Appellees.

Appeal from United States District Court

for the District of North Dakota – Western

Submitted: February 16, 2023

Filed: August 16, 2023

Before COLLOTON, BENTON, and KELLY, Circuit

Judges.

Appendix A

KELLY, Circuit Judge.

Marco Gonzalez was prescribed an antibiotic and

suffered serious adverse effects. He sued the healthcare

providers and hospitals that were involved in his treatment

for medical negligence, and a jury found in favor of

the defendants. Gonzalez filed a motion for a new trial,

challenging the district court’s comments to the jury

and its evidentiary rulings. The district court1 denied the

motion, and then awarded costs to the defendants as the

prevailing parties. Gonzalez now appeals the judgment

entered pursuant to the jury’s verdict, the denial of his

new-trial motion, and the award of costs. Because we lack

jurisdiction to review Gonzalez’s appeal of the underlying

judgment, we review only the district court’s denial of his

motion for a new trial and the award of costs. We affirm.

After experiencing symptoms of urinary urgency,

frequency, and straining, Gonzalez went to a urology

clinic on July 16, 2015, and was seen by Dr. Salem Shahin,

a urologist employed by Mercy Medical Center. A urine

test came back negative for infection, but Dr. Shahin

determined that Gonzalez’s symptoms were consistent

with a chronic prostate infection and prescribed Bactrim,

an antibiotic. He instructed Gonzalez to take the antibiotic

twice daily for a month.

1. The Honorable Daniel Mack Traynor, United States District

Judge for the District of North Dakota.

Appendix A

A few weeks later, on July 30, Gonzalez experienced

blurred vision and drainage from his eyes. He went to

the emergency room at Mercy Medical, where he was

seen by another doctor, Dr. Richard Martin. Dr. Martin

was aware that Gonzalez was taking Bactrim, but seeing

no “Bactrim rash”—a common symptom of an adverse

reaction to Bactrim—he did not believe Gonzalez was

having a reaction to the antibiotic and decided not to

discontinue it. Dr. Martin instead believed Gonzalez had

a viral eye infection and prescribed a medicated ointment

for his eyes.

By that evening, Gonzalez had developed sores on his

lips, and his eyes were red and painful. Gonzalez went

to the emergency room at McKenzie County Healthcare

Systems, where he was seen by physician assistant Jeff

Adams. Gonzalez expressed that he felt his symptoms

were possibly a reaction to the Bactrim. He still had

not developed any rash, however. Adams took note of

Gonzalez’s concern. But Adams, believing the symptoms

were not indicative of a reaction to Bactrim and knowing

that it was prescribed by a urologist, decided it would not

be wise to discontinue the Bactrim and instead instructed

Gonzalez to return to Dr. Shahin. Based on Gonzalez’s

symptoms that evening, Adams diagnosed him with a

viral infection, and possibly an environmental allergy,

and treated him accordingly.

The next day, July 31, Gonzalez returned to the Mercy

Medical emergency room due to pain, particularly in

his eye. There, an emergency room provider, Dr. Carol

Gilmore, conducted a physical exam and ordered a CT

Appendix A

scan. Based on her assessment, Dr. Gilmore diagnosed

Gonzalez with bilateral conjunctivitis, a tonsil infection,

and an infection of the gums. She developed a plan of care

for Gonzalez and discharged him. She did not discontinue

the Bactrim and instructed Gonzalez to continue taking

the antibiotic as prescribed.

The following day, Gonzalez returned to the Mercy

Medical emergency room, reporting worsening symptoms.

He had also developed a rash. Gonzalez was admitted

to the hospital, where he was again examined by Dr.

Gilmore. Dr. Paul Andelin was consulted, and he decided

to discontinue the Bactrim. Soon after, Dr. Andelin

diagnosed Gonzalez with Stevens-Johnson Syndrome, a

rare disorder that can be caused by taking Bactrim. Some

of Gonzalez’s symptoms improved on August 2, but when

Dr. Andelin saw that Gonzalez’s rash was worsening, he

transferred Gonzalez to a burn center for treatment. 2

Gonzalez sued doctors Shahin, Gilmore, Martin, and

Andelin; physician assistant Adams; and Mercy Medical

Center and McKenzie County Healthcare Systems for

medical negligence. An eleven-day jury trial was held.

At trial, Gonzalez offered into evidence the Physicians’

Desk Reference 3 drug label for Bactrim (the Bactrim

2. Gonzalez received extensive treatment and underwent eye

surgery at the burn center. According to a medical expert who

testified at trial, Gonzalez has since regained function in his eyes

but has lingering symptoms like mild dry eye and inflammation.

3. The Physicians’ Desk Reference is a collection of information

about medical drugs, including information from drug manufacturers.

Appendix A

label), which noted that Bactrim’s “most common adverse

effects” include “allergic skin reactions (such as rash

and urticaria).” The label also cautioned that fatalities,

“although rare, have occurred due to severe reactions,

including Stevens-Johnson Syndrome . . . .” Gonzalez

argued that his medical providers had negligently treated

him with Bactrim and failed to discontinue the antibiotic

without consulting the Bactrim label. The defendants

argued in response that the providers reasonably

prescribed the Bactrim and acted with due care given

Gonzalez’s symptoms.

Both Gonzalez and the defense presented testimony

from expert witnesses, for which the district court set time

limits to manage the length of the trial. As relevant to this

appeal, Dr. Gordon Leingang, an expert witness for the

defense, was allotted one hour for direct examination and

30 minutes for cross-examination. After cross-examining

Dr. Leingang for the allotted 30 minutes, Gonzalez

requested 10 additional minutes, which the district court

denied.

On November 18, 2021, the jury returned a verdict

in favor of all defendants, and the next day the district

court entered judgment accordingly. Gonzalez requested

an extension of time to file post-trial motions, and the

defendants did not object. The district court granted

the extension, instructing Gonzalez to file his posttrial

motions by January 13, 2022. On January 13, Gonzalez

filed a motion for new trial, see Fed. R. Civ. P. 59(a)(1),

challenging some of the district court’s comments to

the jury and the district court’s limitations on his cross-

Appendix A

examination of Dr. Leingang. The defendants—without

raising any objection to the timeliness of Gonzalez’s

motion—responded on the merits. The defendants also

filed motions for costs as the prevailing parties, which

Gonzalez opposed.

On April 27, 2022, the district court denied Gonzalez’s

motion for new trial and granted the defendants’ motions

for costs. Gonzalez now appeals, seeking a reversal of the

judgment, a remand for a new trial, and a reversal of the

award of costs.

II.

At the outset, we address the question of jurisdiction.

See Dill v. Gen. Am. Life Ins. Co., 525 F.3d 612, 616 (8th

Cir. 2008). The defendants contend we lack jurisdiction to

review the underlying judgment on the verdict because

Gonzalez filed an untimely notice of appeal. Central to our

consideration of this issue is the timeliness of Gonzalez’s

Rule 59 motion.

Generally, a party in a civil case “must file a notice

of appeal ‘within 30 days after entry of the judgment.’”

Perficient, Inc. v. Munley, 43 F.4th 887, 889 (8th

Cir. 2022) (quoting Fed. R. App. P. 4(a)(1)(A)); see id.

(explaining that “a timely notice of appeal is mandatory

and jurisdictional”). But if a party timely files a Rule 59

motion for a new trial, then the 30-day period in which to

file the notice of appealing the judgment is tolled under

Federal Rule of Appellate Procedure 4(a)(4). See Fed.

R. App. P. 4(a)(4)(A)(v) (explaining that a timely Rule 59

Appendix A

motion causes “the time to file an appeal” to “run[] for

all parties from the entry of the order disposing of the . . .

motion”).

A Rule 59 motion for a new trial is timely if filed “no

later than 28 days after the entry of judgment.” Fed. R.

Civ. P. 59(b). A court may not extend this 28-day deadline.

See Fed. R. Civ. P. 6(b)(2) (providing that “[a] court must

not extend the time to act under” Rule 59(b)). Here, the

district court granted Gonzalez an extension of time to

file his Rule 59 motion. The district court later denied that

motion on April 27, 2022, and Gonzalez subsequently filed

his notice of appeal on May 13—well beyond the 30-day

period after entry of the judgment, but within 30 days of

the order denying his Rule 59 motion.

We only have jurisdiction to review the judgment,

then, if the time to file the notice of appeal was tolled

by Gonzalez’s Rule 59 motion. We conclude it was not.

Although the district court granted Gonzalez an extension

of time to file his Rule 59 motion, such an extension was

granted in error. See Fed. R. Civ. P. 6(b)(2). Accordingly,

because the Rule 59 motion was not “file[d] in the district

court . . . within the time allowed by” the applicable rules,

the time for Gonzalez to file his appeal was not tolled. Fed.

R. App. P. 4(a)(4).

Gonzalez contends that the defendants failed to

object when the district court granted the extension and

thus forfeited their timeliness challenge. The defendants

indeed failed to raise any concerns about the extension

to the district court. And Rule 6(b)—the rule that

Appendix A

prohibits extending the deadline for Rule 59 motions—is

a nonjurisdictional rule subject to forfeiture. See Dill, 525

F.3d at 619 (explaining that Rule 6(b)’s “prohibition against

extending” the time periods for filing certain motions is

a “nonjurisdictional claim-processing rule[],” meaning

that such “timeliness requirements may be forfeited if

they are not timely raised”); cf. Hamer v. Neighborhood

Hous. Servs. of Chi., 138 S. Ct. 13, 17, 199 L. Ed. 2d 249

(2017) (holding that the time prescription in Appellate

Rule 4(a)(5)(C) “is not jurisdictional” because it is “a time

limit prescribed only in a court-made rule,” not one set

by Congress).

However, the defendants’ failure to object means

only that the district court had the authority to rule on

Gonzalez’s Rule 59 motion. It does not mean that we have

jurisdiction to review the underlying judgment. Cf. Arnold

v. Wood, 238 F.3d 992, 998 (8th Cir. 2001) (explaining that

an appeal from a denial of a Rule 60(b) motion does not

present the underlying judgment for appellate review).

As the Advisory Committee Notes on Appellate Rule 4

explain, the time within which to file a notice of appeal

under Rule 4 “is not altered by, for example, a court order

that sets a due date that is later than permitted by the

Civil Rules” or a party’s “failure to object to the motion’s

lateness.” Fed. R. App. P. 4 advisory committee’s note to

2016 amendments (emphasis added). In other words, the

defendants’ failure to object to the extension did not alter

Gonzalez’s deadline for appealing the judgment within 30

days after its entry.

In sum, because Gonzalez filed the notice of appeal

more than 30 days after the entry of the judgment on

Appendix A

the verdict, we lack jurisdiction to review the judgment.

We do, however, have the authority to review the district

court’s ruling on the Rule 59 motion because Gonzalez’s

notice of appeal4 was filed within 30 days of that ruling.

See Fed. R. App. P. 4(a)(1)(A). We therefore review only

the district court’s denial of the motion for a new trial,

and not the underlying judgment. 5

III.

Gonzalez contends that the district court improperly

denied his motion for a new trial. He maintains that the

district court (1) made improper comments about the

Bactrim label and about his lawyer; and (2) erroneously

limited his cross-examination of Dr. Leingang. 6 “We

review the denial of a motion for a new trial for a ‘clear’

abuse of discretion.” White Commc’ns, LLC v. Synergies3

Tec Servs., LLC, 4 F.4th 606, 613 (8th Cir. 2021) (quoting

Hallmark Cards, Inc. v. Murley, 703 F.3d 456, 462 (8th

Cir. 2013)).

4. To the extent Gonzalez argues that the defendants should

have anticipated that his notice would be late-filed and thus should

have raised a timeliness objection to the district court, we disagree.

The defendants were not required to preemptively object to a notice

of appeal before it was filed.

5. For the same reason, we have the authority to review the

district court’s award of costs, which was granted on the same day

as the Rule 59 ruling.

6. To the extent the defendants argue that the district court

was required to treat Gonzalez’s late-filed Rule 59 motion as a Rule

60 motion, the defendants did not raise this argument before the

district court, and we see no need to address it here given that we

affirm the denial of the motion.

10a

Appendix A

Gonzalez first challenges the district court’s comments

to the jury about the Bactrim label. “We review whether

a district court’s comment on the evidence was improper

under an abuse of discretion standard.” Reed v. Malone’s

Mech., Inc., 765 F.3d 900, 910 (8th Cir. 2014). A district

court “has broad discretion in commenting on evidence

and may do so in order to give appropriate assistance to

the jury.” Id. at 910 (quoting Warren v. State Farm Fire

& Cas. Co., 531 F.3d 693, 698 (8th Cir. 2008)). Thus, a

court “may express [its] opinion upon the facts” so long

as it does so “fairly and impartially” and “makes it clear

to the jury that all matters of fact are submitted to their

determination.” Id. at 911 (quoting Gant v. United States,

506 F.2d 518, 520 (8th Cir. 1974)). “The only limitation” is

that the district court’s “comments must not preclude a

fair evaluation of the evidence by the jury.” Id. at 910-11

(quoting Warren, 531 F.3d at 701). The propriety of the

district court’s comments “must be viewed in the context

of the complete charge to the jury.” United States v.

Neumann, 867 F.2d 1102, 1104 (8th Cir. 1989).

After the Bactrim label was admitted into evidence

at trial, the district court read Jury Instruction 19,

which addressed the label. But the district court first

stated that it wanted to “make sure” the jury did not

“give [the label] more weight than it deserves.” And after

reading the instruction, the court told the jury that such

manufacturer-provided materials “are written by drug

companies and lawyers that include all sorts of information

to protect principally drug companies from having a

11a

Appendix A

lawsuit like this.” The parties stipulated to the instruction,

but not to this additional commentary.

We acknowledge Gonzalez’s concerns—the district

court’s supplemental comments were ill-advised.

Nevertheless, the district court emphasized that it was

the jury’s choice to determine the “measure of weight”

and the importance of the label. And the court instructed

the jury that manufacturer information was “competent

evidence” to consider “in determining whether each

medical professional met the standard of care in this

case.” On the whole, it was made clear to the jury that all

factual questions—including the import of the Bactrim

label to Gonzalez’s case—were to be resolved by them. We

conclude, after considering “the complete charge to the

jury,” that the district court did not abuse its discretion.

Neumann, 867 F.2d at 1104.

Gonzalez next challenges the distr ict cour t’s

commentary about his lawyer. Because Gonzalez did not

raise this objection at trial, we review for plain error. See

Russell v. Anderson, 966 F.3d 711, 719-20 (8th Cir. 2020)

(reviewing “only for plain error” because the appellant

“did not object at trial” to the district court’s comments

to the jury). Gonzalez points to a single remark where

the district court opined that his lawyer would “love to

take on” a lawsuit involving drug companies and their

labels. But Gonzalez does not explain how this comment

affected the outcome of the trial. Without more, we cannot

conclude that this remark was sufficiently pervasive or

that it resulted in a miscarriage of justice. See id. at 722

(“When reviewing for plain error, this court ‘will reverse

12a

Appendix A

only when a judge’s comments were so pervasive as to

affect the outcome of the trial and result in a miscarriage

of justice.’” (citation omitted)).

Gonzalez also argues that the district court erred

by limiting his crossexamination of Dr. Leingang, the

emergency-medicine expert for defendant Adams. A

district court has broad discretion over evidentiary and

trial management decisions. See Russell, 966 F.3d at 730

(“This court reviews for abuse of discretion evidentiary

rulings and reverses only for clear and prejudicial abuse

of discretion.” (cleaned up and citation omitted)); Jackson

v. Allstate Ins. Co., 785 F.3d 1193, 1203 (8th Cir. 2015)

(explaining that a trial court’s imposition of time limits

on the presentation of evidence is “reversed only for an

abuse of discretion”).

Specifically, Gonzalez asserts that the district

court erroneously precluded him from questioning Dr.

Leingang about an admitted exhibit: McKenzie County

Healthcare’s policy on medication administration. We need

not address whether this ruling by the district court was

an abuse of discretion because any error was harmless.

See Cooper v. City of St. Louis, 999 F.3d 1138, 1140 (8th

Cir. 2021) (declining to “address the merits of whether

the [expert testimony] exclusion was a gross abuse of

discretion” because “any error was harmless” (cleaned

up and citation omitted)); Hall v. Arthur, 141 F.3d 844,

850 (8th Cir. 1998) (holding that this court will consider

an erroneous evidentiary ruling as harmless unless “the

13a

Appendix A

jury was substantially swayed by the result of that error”

(cleaned up and citation omitted)).

At trial, Dr. Leingang testified that he had never seen

or reviewed the policy document and did not know whether

such a policy was in effect at the time Adams examined

Gonzalez. Accordingly, when defense counsel objected to

additional cross-examination of Dr. Leingang about the

policy document, the district court sustained the objection

because Leingang “indicated an unfamiliarity with” the

document. Gonzalez does not specify what testimony he

would have elicited from Dr. Leingang had he been able to

continue questioning the doctor about the policy document.

We see no reversible error here. See Cooper, 999 F.3d at

1140 (holding that the exclusion of expert testimony did

not merit a new trial because any error was harmless,

since that testimony would not have added anything to

the admitted evidence).

Gonzalez also contends that the district court

erroneously denied his request for an additional ten

minutes to cross-examine Dr. Leingang. A trial court

may “impose reasonable time limits on the presentation

of evidence to prevent undue delay, waste of time, or

needless presentation of cumulative evidence.” Cedar

Hill Hardware & Constr. Supply, Inc. v. Ins. Corp. of

Hannover, 563 F.3d 329, 352 (8th Cir. 2009) (quoting Life

Plus Int’l v. Brown, 317 F.3d 799, 807 (8th Cir. 2003)). To

preserve this issue, the party “must have timely objected

and made an offer of proof of the evidence excluded by the

time limits.” Harris v. Chand, 506 F.3d 1135, 1141 (8th

Cir. 2007).

14a

Appendix A

Gonzalez failed to make an offer of proof at trial,7 so

we review for plain error. See id. (noting that plain error

review may be appropriate when “no offer of proof was

made at trial”). Accordingly, we will reverse “only if the

error was so prejudicial as to have affected substantial

rights resulting in a miscarriage of justice.” Walker v.

Kane, 885 F.3d 535, 541 (8th Cir. 2018) (citation omitted).

Gonzalez is unable to articulate how the district court’s

denial of an additional ten minutes to cross-examine Dr.

Leingang resulted in a miscarriage of justice. He merely

asserts that Dr. Leingang was an important witness

whose opinions he needed to adequately “explore.” This

broad assertion, without more, does not persuade us

that Gonzalez was prejudiced. 8 Indeed, with his last few

minutes remaining, Gonzalez asked generalized questions

that were not focused on the particular facts of his case.

Although we caution district courts to ensure that time

limits are “sufficiently flexible” during trial, we discern

no plain error here. Harris, 506 F.3d at 1141.

IV.

Lastly, Gonzalez challenges the district court’s award

of costs for certain deposition transcripts and videos,

which we review for an abuse of discretion. Marmo v.

7. Gonzalez concedes that he did not “make an express offer of

proof” at trial. To the extent Gonzalez argues that one was implied

in his “cross-examination questions, Defendants’ objections, and the

Court’s rulings,” we are unpersuaded.

8. Gonzalez also asserts that he would have elicited testimony

from Dr. Leingang about the hospital policy document, but as

discussed above, the district court precluded that line of questioning,

and we discern no reversible error as to that ruling.

15a

Appendix A

Tyson Fresh Meats, Inc., 457 F.3d 748, 762 (8th Cir.

2006). Federal Rule of Civil Procedure 54(d) provides

that costs other than attorneys’ fees “should be allowed to

the prevailing party.” See 28 U.S.C. § 1920 (enumerating

costs that are recoverable). A district court may tax

deposition transcript and video costs if the deposition

was “necessarily obtained for use in a case’ and was not

‘purely investigative.’” Marmo, 457 F.3d at 762 (quoting

Smith v. Tenet Healthsystem SL, Inc., 436 F.3d 879, 889

(8th Cir. 2006)); see Craftsmen Limousine, Inc. v. Ford

Motor Co., 579 F.3d 894, 898 (8th Cir. 2009) (holding that

the “costs of video depositions are included under § 1920”).

Gonzalez makes a conclusory assertion that the

depositions whose costs he challenges were unnecessary,

but he “fails to offer any specific basis to rebut the

presumption in favor of awarding” the defendants their

costs. Craftsmen Limousine, 579 F.3d at 897. Gonzalez

points to the fact that there were “disparate” transcript

and video charges “claimed by the Defendants for the

same deposition,” but he does not dispute the veracity of

the charges. And an inconsistency in the costs submitted

by the defendants, alone, does not bear on the district

court’s ability to impose them. See Marmo, 457 F.3d at

762. The district court did not abuse its discretion.

For the foregoing reasons, we affirm.

16a

B THE UNITED

APPENDIX B —Appendix

ORDER OF

STATES DISTRICT COURT FOR THE DISTRICT

OF NORTH DAKOTA, FILED APRIL 27, 2022

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

April 27, 2022, Decided;

April 27, 2022, Filed

Case No. 1:17-cv-157

MARCO GONZALEZ,

Plaintiff,

SALEM SHAHIN, M.D.; CAROL GILMORE, M.D.;

RICHARD MARTIN, M.D.; PAUL ANDELIN,

M.D.; JEFFREY ADAMS, PA-C; MERCY

MEDICAL CENTER; AND MCKENZIE COUNTY

HEALTHCARE SYSTEMS, INC.,

Defendants.

ORDER DENYING MOTION FOR NEW TRIAL

[¶1] THIS MATTER comes before the Court on

Plaintiff Marco Gonzalez’s (“Gonzalez”) Motion for New

Trial filed on January 13, 2022. Doc. No. 281. Defendant

McKenzie County Healthcare Systems, Inc. (“McKenzie

County”) filed its Response on February 16, 2022. Doc. No.

17a

Appendix B

295. Defendant Salem Shahin, MD (“Dr. Shahin”) filed his

Response on February 17, 2022. Doc. No. 296. Defendants

Jeffrey Adams, PAC, (“PA Adams”) filed his Response on

February 18, 2022. Doc. No. 297. Finally, Defendants Paul

Andelin, MD (“Dr. Andelin”), Carol Gilmore, MD (“Dr.

Gilmore”), Richard Martin, MD (“Dr. Martin”) and Mercy

Medical Center (“Mercy Medical) filed their Response

on February 18, 2022. Doc. No. 298. Gonzalez filed Reply

briefs on March 10, 2022. Doc. Nos. 302, 303, 304, 305.

For the reasons set forth below, Gonzalez’s Motion for

New Trial is DENIED.

LEGAL STANDARDS

[¶2] Gonzalez brings his Motion for New Trial pursuant

to Rule 59 of the Federal Rules of Civil Procedure. A court

may grant a new trial “after a jury trial, for any reasons

for which a new trial has heretofore been granted in an

action at law in federal court.” Fed. R. Civ. P. 59(a)(1)(A).

In reviewing a motion for new trial, the Court considers

“whether a new trial is necessary to prevent a miscarriage

of justice.” Hallmark Cards, Inc. v. Murley, 703 F.3d 456,

462 (8th Cir. 2013). The Eighth Circuit has cautioned, “[a]

new trial should be granted only if the evidence weighs

heavily against the verdict.” Id. A new trial may be ordered

“only if the error misled the jury or had a probable effect

on its verdict.” Id. (citation and quotation marks omitted).

“Deciding a motion for new trial is a matter committed to

the sound discretion of the trial court.” O’Dell v. Hercules,

Inc., 904 F.2d 1194, 1200 (8th Cir. 1990).

18a

Appendix B

DISCUSSION

[¶3] Gonzales moved for a new trial on four separate

grounds. First, Gonzalez contends the Court made

improper comments relating to the Bactrim label and trial

counsel. Second, Gonzalez argues the Court improperly

limited the time of trial and examination and crossexamination of witnesses. Third, Gonzalez claims the

Court improperly overruled his objections to the crossexamination of defense expert Dr. Leingang while limiting

and sustaining objections to Plaintiff’s cross-examination

of Dr. Leingang. Finally, Gonzalez argues the Court

allowed impermissible cross-examination of Gonzalez’s

lifecare planner relating to his ability to afford treatment.

The Court will take each in turn.

Comments Relating to Bactrim Inser t and

Plaintiff’s Counsel

[¶4] Gonzalez argues the Court improperly commented

on the purpose of the Bactrim label being to prevent

liability for the drug manufacturer. Gonzalez further

argues the Court improperly commented on trial counsel’s

hypothetical desire to sue a drug manufacturer on behalf

of an injured person. The Defendants all argue the Court

did not err in these comments.

[¶5] Gonzalez never made this specific objection

relating to the Court’s statement about the purpose of

the Bactrim insert or the Court’s comment regarding

trial counsel at the time the statement was made. Absent

a specific objection at that time, the Court’s analysis is

19a

Appendix B

limited to plain error. See Rush v. Smith, 56 F.3d 918, 922

(8th Cir. 1995) (“When the complaining party has failed to

object to the court’s statements at trial, our review is for

plain error only.”) “Under plain error review, an error not

identified by a contemporaneous objection is grounds for

reversal only if the error prejudices the substantial rights

of a party and would result in a miscarriage of justice if

let uncorrected.” Id.

[¶6] The Court’s instruction on the Bactrim label

properly informed the jury it is not conclusive evidence

of the medical providers’ standard of care. See Doc. No.

254, ¶ 33. As to the Court’s comment on drug companies’

avoiding liability, this was likewise appropriate. See

Morlino Medical Center of Ocean County, 152 N.J. 563,

706 A.2d 721, 729 (N.J. 1998) (“Manufacturers write

drug package inserts and PDR warnings for many

reasons including compliance with FDA requirements,

advertisement, the provision of useful information to

physicians, and an attempt to limit the manufacturer’s

liability.”). The Final Jury Instructions likewise gave

the jury the requirements for establishing the standard

of care, “Evidence as to the standard of care, the failure

to meet that standard of care, and proximate cause must

be established by expert testimony.” Doc. No. 254, ¶

32. Accordingly, there was no plain error in the Court

explaining the purpose of the Bactrim label.

[¶7] Finally, as to the Court’s comment relating to Mr.

Leventhal’s desire to sue a drug manufacturer, the Court

concludes there was no harm in making this comment. The

comment must be viewed in the context of the length and

20a

Appendix B

nature of the trial. It was a comment made in a matter of

seconds during the course of a twelve-day complex medical

malpractice jury trial. It was also a joke. Gonzalez merely

contends the Court’s comment was inappropriate. Even

assuming it was, or maybe it was a bade joke, Gonzalez has

failed to show it impacted the jury’s decision or prejudiced

his case in any way. See Reed v. Malone’s Mechanical, Inc.,

765 F.3d 900, 910-11 (8th Cir. 2014) (“The trial court has

broad discretion in commenting on evidence and may do

so in order to give appropriate assistance to the jury. The

only limitation on the discretion is that the comments must

not preclude a fair evaluation of the evidence of the jury.”

(internal citations and quotation marks omitted)); see also

Rush, 56 F.3d at 922 (“While this court previously stated

that a few improper comments are not necessarily enough

to require reversal, we also recognized at the same time

that each case of allegedly prejudicial comments made

by the trial judge must turn on its own circumstances.”

(citation and quotation marks omitted)).

[¶8] The potential prejudicial impact of these

comments was also effectively cured by the Court in the

final instructions. The Court instructed the Jury at the

close of trial, “I have not intended to suggest what I think

your verdict should be by any of my rulings or comments

during trial.” Doc. No. 254, ¶ 4. “A jury is presumed to

follow the instructions given.” In re Prempro Products

Liability Litigation, 514 F.3d 825, 832 (8th Cir. 2008).

The Court therefore presumes the jury followed the

instruction that the Court’s comments do not suggest

what the Court believes the verdict should be. Gonzalez

has failed to provide any basis the jury failed to follow the

21a

Appendix B

instruction that the Court’s comments are not intended

to suggest what the verdict should be.

[¶9] Accordingly, Gonzalez has failed to show a new

trial is warranted based on the Court’s comments on the

Bactrim package insert.

II. Court Imposed Time Limitations

[¶10] Gonzalez argues a new trial is necessary because

the Court improperly restricted his time to present his

case and in cross-examining the Defendants and their

experts. The Defendants argue the Court did not abuse

its discretion in limiting the time for trial and applied the

restrictions evenhandedly.

[¶11] It is well established trial courts have wide

discretion in placing “reasonable time limits on the

presentation of evidence to prevent undue delay, waste

of time, or needless presentation of cumulative evidence.”

Johnson v. Ashby, 808 F.2d 676, 678 (8th Cir. 1987).

The overcrowded dockets of courts require the courts

to “exercise strict control over the length of trials.” Id.

(quoting Flaminio v. Honda Motor Co., Ltd., 733 F.2d 463,

473 (7th Cir. 1984)). Limiting the length of trial that results

in exclusion of “probative, non-cumulative evidence” may

be an abuse of discretion. Id. When limiting the length of

trial, courts should be flexible enough to recognize when

the restrictions may be too rigid. Id.

[¶12] The time restrictions in this case were reasonable.

The Court evenhandedly restricted the presentation of

22a

Appendix B

Gonzalez and the Defendants. When the Parties could not

agree on how to split the twelve days available for trial,

they asked the Court to intervene. The Parties submitted

proposed times for each witness and the Court made

reductions to those times to accommodate for the trial

length. Multiple times throughout the trial, the Court

permitted additional questioning by the Parties when

requested. Sometimes the Court denied such requests

when it was apparent the evidence sought with additional

questioning was going to be cumulative or a waste of time.

In addition, Gonzalez has not made an offer of proof or

even a suggestion of what evidence was omitted due to

the time constraints put in place by the Court. Gonzalez

simply asserts probative, non-cumulative evidence was

omitted without illustrating any information relating to

what evidence was not admitted.

[¶13] Accordingly, Gonzalez has failed to show a new

trial is warranted based on the time restrictions imposed

by the Court.

III. Evidentiary Rulings Regarding Dr. Leingang’s

Testimony

[¶14] Gonzalez next argues the Court erred in limiting

his ability to cross-examine Dr. Leingang, specifically

regarding Exhibit 17, which was McKenzie County’s

policy on medication administration. Gonzalez also

argues the Court erred in overruling his objections to

the leading questions by Defense Counsel on re-direct

examination. Finally, Gonzalez contends the objections

and time limitations prevented him from fully questioning

23a

Appendix B

Dr. Leingang. The Defendants argue the Court properly

ruled on the objections during Dr. Leingang’s testimony.

[¶15] “The court should exercise reasonable control

over the mode and order of examining witnesses and

presenting evidence” in order to ensure the process

effectively determines the truth, avoids wasting time, an

protects witnesses from harassment and embarrassment.

Fed. R. Evid. 611(a). Cross-examination generally should

not go beyond the scope of direct examination. Fed.

R. Evid. 611(b). Generally, leading questions should be

prohibited on directed examination but permitted on

cross-examination or when a hostile witness, adverse

party, or witness identified with an adverse party is

called. Fed. R. Evid. 611(c). The Court may allow for

leading questions on direct examination when “necessary

to develop the witness’s testimony.” Id. The Court has

discretion over the use of leading questions during trial.

United States v. Butler, 56 F.3d 941, 943 (8th Cir. 1995).

[¶16] The Court explained to the jury the reason

for prohibiting Dr. Leingang from testifying regarding

Exhibit 17 was due to Dr. Leingang not being familiar with

the contents of the exhibit. Without that knowledge, he

would be unable to testify about the exhibit. Any further

questioning would have been a waste of time. As for the

leading questions on re-direct examination, the court

permitted it as an efficient and necessary way to develop

Dr. Leingang’s testimony. See Fed. R. Evid. 611(c). Finally,

as to the general assertion of the objections and time

limitations preventing full examination of Dr. Leingang,

Gonzalez did not raise this objection at the time of trial.

24a

Appendix B

He has not provided what, if any, additional testimony he

would have elicited from Dr. Leingang. The final question

asked by Gonzalez’s counsel was how many physician’s

assistants are there in America? With that being the

final question, the Court concluded no additional time was

necessary to cross-examine Dr. Leingang.

[¶17] Accordingly, Gonzalez has failed to show a new

trial is warranted based on the Court’s evidentiary rulings

relating to Dr. Leingang’s testimony.

IV. Evidentiary Rulings Regarding Gonzalez’s Lifecare

Planner Testimony

[¶18] Gonzalez argues the Court erred in allowing

the Defense to cross-examine his lifecare planner’s on

Gonzalez’s ability to afford his treatment. The Defendants

argues Gonzalez misconstrues the cross-examination and

that the cross-examination was on the treatment he did

or did not receive since 2019.

[¶19] Gonzalez misconstrues what occurred during

his lifecare planner’s testimony. The lifecare planner

estimated what needs Gonzalez will have beginning in

2019. The Defense questioned her on his actual costs in

2019. The questions did not relate to his ability to pay.

Rather, the Defense focused on the lifecare planner’s

projections and how they compared to the actual medical

expenses Gonzalez had in that time. This goes directly to

the heart of the lifecare planner’s credibility. The Defense

did not improperly question her on Mr. Gonzalez’s ability

to pay. It was the lifecare planner who on her own began to

25a

Appendix B

explain Gonzalez had a lack of funds. The Court specifically

struck this testimony from the record. In other words, the

Court told the jury to disregard that testimony. The Court

presumes the jury followed the instruction to disregard

the testimony and Gonzalez has now shown any probability

the jury was unable to do so. See Stults v. American Pop

Corn Co., 815 F.3d 409, 415 (8th Cir. 2016) (“We normally

presume that a jury will follow an instruction to disregard

inadmissible evidence inadvertently presented to it, unless

there is an overwhelming probability that the jury will be

unable to follow the court’s instructions.” (citations and

quotation marks omitted)).

CONCLUSION

[¶20] In sum, Gonzalez has failed to establish a new

trial is necessary in this matter. He has failed to show

any of the Court’s rulings prejudiced him in any way. The

Court concludes there was no error in the comments or

rulings made at trial. Accordingly, Gonzalez’s Motion for

New Trial is DENIED.

[¶21] IT IS SO ORDERED.

DATED April 27, 2022.

/s/ Daniel M. Traynor

Daniel M. Traynor, District Judge

United States District Court

26a

APPENDIX C — Appendix

TRANSCRIPT

EXCERPTS

FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA,

FILED JUNE 24, 2022

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

File No. 1:17-cv-157

Appeal No. 22-2012

MARCO GONZALEZ,

Plaintiff,

vs.

SALEM SHAHIN, M.D.; CAROL GILMORE, M.D.;

RICHARD MARTIN, M.D.; PAUL ANDELIN,

M.D.; JEFFREY ADAMS, PA-C; MERCY

MEDICAL CENTER; AND MCKENZIE COUNTY

HEALTHCARE SYSTEMS, INC.,

Defendants.

TRANSCRIPT OF JURY TRIAL

Volume III

Taken at

United States Courthouse

Bismarck, North Dakota

November 5, 2021

BEFORE THE HONORABLE DANIEL M. TRAYNOR

-- UNITED STATES DISTRICT COURT JUDGE --

27a

Appendix C

[375]

***

I also need to give you an additional instruction. I’ve

allowed Exhibit 78 into the record, and it will go back with

you for your consideration during your deliberations. I

can tell you that not every court would do that in a case

like this. It’s a discretionary matter. I made the decision

to allow that to go back with you. Sometimes -- if it’s not,

it’s flashed up on the screen, you’re told that that’s an

opportunity for you to take a look at it. You have to keep

notes and try to remember everything that it says, but

the concern and the reason why it doesn’t always go back

is they don’t -- judges, lawyers, parties, are concerned

about the weight that jurors will give a particular item

of evidence like [376]that. And so the measure of weight

or how important something like that is, is a decision

that you get to make. But we want to make sure that you

don’t give it more weight than it deserves. So I’m giving

you an additional instruction regarding manufacturer

information.

The information issued by manufacturers for the use

of a drug are competent evidence to use in determining

whether the appropriate standards of care are followed.

However, they are not to be used as conclusive evidence

of or to establish the standards of care required of each

medical professional on their own.

Instead, you may consider them along with the other

testimony presented in determining whether each medical

professional met the standard of care in this case.

28a

Appendix C

I’ll include that as part of the closing instructions so

that you have that item as an additional reference point

but that applies to Exhibit 78, Plaintiff’s Exhibit 78, which

you’ll recall is the Bactrim insert.

There may be some additional exhibits that we allow

from the manufacturer. Keep in mind these are written

by drug companies and lawyers that include all sorts of

information to protect principally drug companies from

having a lawsuit like this; so they’ll include all sorts of

information in those documents. Because if they know of

a concern and they don’t put it into an insert like that and

they have a lawsuit as a [377]result, it’s a case that I’m sure

Mr. Leventhal would love to take on behalf of somebody

who is injured as a result of that type of conduct. So keep

it in perspective.

All right. I’ve also informed the attorneys that some

members of the jury are having a difficult time hearing

witnesses. I’ve told the attorneys that the jury may go like

that (indicating) if they need to hear better and so please

do so and we’ll try to make sure that the microphone is

brought in the face of the person who is testifying.

***

[440]

***

Mr. Leventhal, did you have an objection you wanted

to make?

29a

Appendix C

MR. LEVENTHAL: I do, Your Honor. The Court,

when we began the session today, read your instruction

about the label.

THE COURT: Right.

MR. LEVENTHAL: It also introduced to the jury

evidence which is not endorsed from any expert witness

from the defense, from the plaintiff, even though we’ve

known the label is at issue about what the purpose of

the label is and that the purpose of the label clearly

protecting the drug companies from liability if they

don’t put something in the label. I want to [441]register

an objection to that. I would request that the Court not

allow the defense to pile on to that and question people

do you agree with the judge or whether they use those

words or not, that the label really -- the main purpose

is to protect the drug companies. We don’t think that it

would be appropriate given that not one expert witness is

endorsed to say that. This is not evidence that would come

in. I suspect that if I had a witness try to say, well, what’s

the purpose of the label and not -- and they had objected,

the Court probably would have sustained the objection.

And because of that I render -- I’m making a record

with my objection, and also request that the defense not

be allowed to open that up and even suggest that that’s the

purpose of the label at any other time during this trial.

THE COURT: Mr. Leventhal, your objection is noted.

It’s common sense.

But any response from the defense?

30a

Appendix C

MS. KOLB: I will say this on behalf of my clients. I

know my colleagues here want to comment as well. I did

not plan to ask a question like that of Dr. Corre so to the

extent there might be a concern about that.

THE COURT: Mr. Schwegman or Mr. Hanson?

MR . SCH W EGM A N: Your Honor, there was

testimony -- there’s testimony but certainly in my

opening statement I talked about the Bactrim label in

that introductory paragraph [442]and the purpose of

that. So I don’t think Mr. Leventhal’s objection goes to

the content of the Bactrim label and comments within

that label because, for example, in that first paragraph

when he reads the mandate that the Bactrim should only

be prescribed if there is a proven or strongly suggested

infection initially left out the part that talked about to

prevent the development of bacteria-resistant antibiotics.

So I fully intend to cross-examine witnesses on that and

I just don’t want his objection to be so overbroad that it

prevents me from using portions of the sort of self-evident

contents of the label.

THE COURT: It’s not overbroad. I don’t believe my

comments were in any way inappropriate. I think that it’s

a matter of common sense that these items are drafted

by drug companies when they are released as part of the

offering of the prescription and the drug.

And so your objection is noted for the record, Mr.

Leventhal, if you want to preserve the matter for an

appeal, but I’m not going to sustain the objection. I’m

going to overrule it. Counsel can use it. Refer to the

31a

Appendix C

matter if they deem it appropriate but I don’t, frankly,

think that they’re going to. It’s just a matter of common

sense that these things are produced by drug companies

for the purpose of protecting them.

MR. LEVENTHAL: And as far as the second part

of my request which was that they not be -[443]THE COURT: Denied.

MR. LEVENTHAL: Pardon me?

THE COURT: Denied. I’m not going to place any

limitations on the defense counsel based upon something

that I said as an offhanded comment which is a matter of

common sense, Mr. Leventhal, in my opinion.

MR. LEVENTHAL: Thank you.

THE COURT: Okay? You have a problem with it, take

it to an appeals court.

You can call the jury.

****

32a

APPENDIX D —Appendix

ORDER D

OF THE UNITED

STATES COURT OF APPEALS FOR THE EIGHTH

CIRCUIT, DATED SEPTEMBER 21, 2023

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 22-2012

MARCO GONZALEZ,

Appellant,

SALEM SHAHIN, MD, et al.,

Appellees.

Appeal from U.S. District Court

for the District of North Dakota - Western

(1:17-cv-00157-DMT)

ORDER

The petition for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

Judge Erickson did not participate in the consideration

or decision of this matter.

September 21, 2023

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Michael E. Gans

33a

Appendix E JUDGMENT OF

APPENDIX E — AMENDED

THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF NORTH DAKOTA,

FILED APRIL 27, 2022

UNITED STATES DISTRICT COURT

DISTRICT OF NORTH DAKOTA

Case No. 1:17-cv-157

MARCO GONZALEZ,

Plaintiff,

vs.

SALEM SHAHIN, M.D.; CAROL GILMORE, M.D.;

RICHARD MARTIN, M.D.; PAUL ANDELIN,

M.D.; JEFFREY ADAMS, PA-C; MERCY

MEDICAL CENTER; AND MCKENZIE COUNTY

HEALTHCARE SYSTEMS, INC.,

Defendants.

AMENDED JUDGMENT IN A CIVIL CASE

 Jury Verdict. This action came before the Court for a

trial by jury. The issues have been tried and the jury has

rendered its verdict.

 Decision by Court. This action came to trial or hearing

before the Court. The issues have been tried or heard and

a decision has been rendered.

 Decision on Motion. This action came before the Court

on motion. The issues have been considered and a decision

rendered.

34a

Appendix E

 Stipulation. This action came before the court on

motion of the parties. The issues have been resolved.

 Dismissal. This action was voluntarily dismissed by

Plaintiff pursuant to Fed. R. Civ. P. 41(a)(1)(ii).

IT IS ORDERED AND ADJUDGED:

Pursuant to the jury’s verdict entered on November 18,

2021, judgment is hereby entered in favor of defendants

Salem Shahin, M.D., Carol Gilmore, M.D., Richard

Martin, M.D., Paul Andelin, M.D., Jeffrey Adams, PA-C,

Mercy Medical Center, and McKenzie County Healthcare

Systems, Inc.

Pursuant to the Order filed on April 27, 2022, McKenzie

County’s Motion for Costs and PA Adams’ Motion for

Costs are GRANTED. The Mercy Medical Defendants’

Motion for Costs and Dr. Shahin’s Motion for Costs are

GRANTED, IN PART. Accordingly, the Judgment t is

amended to include the following awards of costs and

disbursements: $20,339.48 to Defendant McKenzie County

Healthcare Systems, Inc.; $19,437.59 to Defendant Jeffrey

Adams, PA-C.; $21,205.16 to Carol Gilmore, M.D., Richard

Martin, M.D., Paul Andelin, M.D., and Mercy Medical

Center; and $15,618.15 to Salem Shahin, M.D.

Date: April 27, 2022

ROBERT J. ANSLEY, CLERK OF COURT

By: /s/ Melissa Fischer, Deputy Clerk

35a

APPENDIX FAppendix

— JUDGMENT

OF THE

UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF NORTH DAKOTA,

FILED NOVEMBER 19, 2021

UNITED STATES DISTRICT COURT

DISTRICT OF NORTH DAKOTA

Case No. 1:17-cv-157

MARCO GONZALEZ,

Plaintiff,

vs.

SALEM SHAHIN, M.D.; CAROL GILMORE, M.D.;

RICHARD MARTIN, M.D.; PAUL ANDELIN,

M.D.; JEFFREY ADAMS, PA-C; MERCY

MEDICAL CENTER; AND MCKENZIE COUNTY

HEALTHCARE SYSTEMS, INC.,

Defendants.

JUDGMENT IN A CIVIL CASE

 Jury Verdict. This action came before the Court for a

trial by jury. The issues have been tried and the jury has

rendered its verdict.

 Decision by Court. This action came to trial or hearing

before the Court. The issues have been tried or heard and

a decision has been rendered.

 Decision on Motion. This action came before the Court

on motion. The issues have been considered and a decision

rendered.

36a

Appendix F

 Stipulation. This action came before the court on

motion of the parties. The issues have been resolved.

 Dismissal. This action was voluntarily dismissed by

Plaintiff pursuant to Fed. R. Civ. P. 41(a)(1)(ii).

IT IS ORDERED AND ADJUDGED:

Pursuant to the jury’s verdict entered on November 18,

2021, judgment is hereby entered in favor of defendants

Salem Shahin, M.D., Carol Gilmore, M.D., Richard

Martin, M.D., Paul Andelin, M.D., Jeffrey Adams, PA-C,

Mercy Medical Center, and McKenzie County Healthcare

Systems, Inc.

Date: November 19, 2021

ROBERT J. ANSLEY, CLERK OF COURT

By: /s/ Roxanne Muffenbier, Deputy Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.