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Bagheri v. Bailey

United States District Court, W.D. Virginia, Abingdon Division

May 24, 2016


          Cynthia D. Kinser and Benjamin D. Byrd (Travis J. Graham on brief), Gentry Locke, Roanoke, Virginia, for Plaintiff;

          Jimmie C. Miller and James N.L. Humphreys, Hunter, Smith & Davis, LLP, Kingsport, Tennessee, for Defendants.


          James P. Jones, United States District Judge.

         In this medical malpractice case involving treatment and diagnosis in a hospital’s emergency department, the jury returned a large verdict in favor of the deceased patient’s estate. The defendant emergency room physician and his employer have moved for a new trial pursuant to Rule 59(a) of the Federal Rules of Civil Procedure. The primary grounds asserted are that members of the jury were exposed to prejudicial news reports during trial, and were advised through questioning by plaintiff’s counsel that the physician’s medical license had been suspended, a fact unconnected to the alleged malpractice. While the question is a close one under the particular circumstances of the case, I find that a new trial should not be granted, based upon my opportunity to judge the ability of the jury to put aside the information in question following my curative instructions.


         The following facts are taken from the record of the trial and the Motion for a New Trial.

         On June 7, 2013, Shawn Matthew McKee, age 31, presented to the Russell County Medical Center Emergency Department. Mr. McKee complained of chest and back pain, shortness of breath, nausea, rapid heart rate, and a fever. Mr. McKee also had an infected foot. Dwight L. Bailey, M.D., the defendant, was on duty in the emergency department and examined Mr. McKee. While it was a contested issue at trial, the jury also returned its verdict against the codefendant, Appalachian Emergency Physicians (“AEP”), implicitly finding that Dr. Bailey was its employee.

         After his initial examination, Dr. Bailey ordered a number of diagnostic tests, including a D-dimer test, a venous Doppler ultrasound, and a chest X ray.

         A D-dimer test may be ordered when there is a suspected clot obstructing a blood vessel. A clot may travel to a lung, which may lead to sudden death. The D-dimer test is relatively non-specific, in that not every patient with a high D-dimer score will suffer from an embolism (blood clot), but virtually every patient with an embolism will have a high D-dimer score. Mr. McKee had a high D-dimer score. The venous Doppler ultrasound and chest X ray were normal.

         Dr. Bailey then ordered a CT (computed tomography) scan to be performed; a CT scan is a preferred test for detecting pulmonary emboli. However, Mr. McKee, who weighed 460 pounds, was too large to fit in the Russell County Medical Center’s CT machine, so a scan was not performed. Dr. Bailey ultimately concluded that Mr. McKee was suffering from acute bronchitis, and released Mr. McKee from his care that night. Mr. McKee seemed to be feeling better, and Dr. Bailey testified that he told him to obtain a CT scan at another hospital if his condition did not improve.

         A few days later, on June 12, 2013, Mr. McKee and his wife, Jessica McKee, started the process of moving with their two young children from their home in Lebanon, Virginia, to Post Falls, Idaho, where Jessica’s family lived. The family ultimately arrived in Idaho on June 16, 2013, after driving for approximately four days.

         In Idaho on June 25, 2013, Mr. McKee began to suffer from shortness of breath. Paramedics eventually took him to a hospital via ambulance. Unfortunately, Mr. McKee became unresponsive around the time the ambulance arrived at the hospital, and died shortly thereafter. An autopsy revealed that Mr. McKee died of a pulmonary artery thromboembolism (a blood clot that moved to a lung) and bilateral pulmonary infarcts (dead tissue in both lungs).

         The plaintiff, Mr. McKee’s mother and administrator of his estate, filed suit against the defendants on October 28, 2014.[1] The trial began on December 2, 2015, and lasted for four days. The plaintiff introduced expert medical testimony as to the standard of care and causation from three expert witnesses, Bruce D. Janiak, M.D., Sally S. Aiken, M.D., and Richard Light, M.D., as well as testimony by deposition from Paul F. Paschall, M.D., the physician who had treated Mr. McKee in Idaho before his death. The plaintiff also testified, and called Mr. McKee’s widow, Jessica, and Larry F. Lynch, Ph.D., an expert economist.

         Drs. Janiak and Light opined that Mr. McKee was suffering from a pulmonary embolism when he was seen by Dr. Bailey on June 7. These opinions were supported, at least in part, by the results from the autopsy, which showed that he had pulmonary infarcts. Drs. Janiak and Light each opined that this dead tissue was caused by prior pulmonary emboli. Their opinions were also supported by the D-dimer test result from June 7, along with Mr. McKee’s symptoms that day that were consistent with a pulmonary embolism. Drs. Janiak and Light asserted that Dr. Bailey should have suspected that Mr. McKee had a pulmonary embolism on June 7 based on his symptoms and the elevated D-dimer test. They further said that because of this suspicion, Dr. Bailey should have arranged a CT scan at a nearby hospital that was able to accommodate Mr. McKee’s size. Drs. Janiak and Light opined that by failing to arrange such a CT scan, Dr. Bailey deviated from the accepted medical standard of care.

         The plaintiff’s experts agreed that the pulmonary embolism that killed Mr. McKee on June 25 was not the same embolism that he was suffering from on June 7. However, it was opined that if the pulmonary embolism had been detected on June 7, Mr. McKee could have received anti-coagulate medication that would have prevented the June 25 embolism. Drs. Janiak and Light both testified that Dr. Bailey should have administered such medication immediately after learning that the hospital’s CT machine was unable to accommodate Mr. McKee.

         The plaintiff’s economist, Dr. Lynch, provided testimony regarding the plaintiff’s damages. Specifically, he estimated Mr. McKee’s earning potential and the extent to which his statutory beneficiaries would have benefitted from Mr. McKee’s future earnings.

         The defendants presented contrary medical testimony from Dale Sargent, M.D., Forrest L. Tucker, M.D., William Hudson, M.D., and Dr. Bailey. The defendants also introduced testimony from the decedent’s mother-in-law.

         Drs. Sargent and Tucker testified that Dr. Bailey complied with the standard of care and that his diagnosis of acute bronchitis on June 7 was appropriate. These opinions were supported by the fact that on June 7, Mr. McKee’s symptoms had developed slowly over several days, that he was suffering from a fever, and that he had a productive cough. Drs. Sargent and Tucker reasoned that these symptoms were more consistent with an infection and bronchitis than a pulmonary embolism. Dr. Sargent also reasoned that because Mr. McKee’s chest and back pain worsened with movement, the pain was not caused by a pulmonary embolism. Dr. Sargent also pointed to Mr. McKee’s normal oxygen saturation as evidence that no pulmonary embolism was present on June 7. Dr. Sargent’s opinion relied in part on the Wells Critera, a set of diagnostic criteria used to analyze whether an individual has a pulmonary embolism. Dr. Tucker testified that Mr. McKee’s infarcts had been caused by pneumonia, and not by a pulmonary embolism.

         The defendants argued that Mr. McKee was not suffering from a pulmonary embolism on June 7, and that the embolism that killed him formed as the result of his four-day car ride from Virginia to Idaho, since pulmonary embolisms can be produced by prolonged periods of immobilization.

         After argument and instructions, the jury deliberated for approximately one hour[2] before returning a verdict in favor of the plaintiff and awarding $2, 750, 000 in compensatory damages against both defendants, to be divided among the deceased’s statutory beneficiaries.[3] The defendants now ask me to reject that verdict and order a new trial. For the reasons explained below, I will deny the defendants’ motion.


         The grant or denial of a motion for new trial is entrusted to the sound discretion of the district court. Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 305 (4th Cir. 1998). Pursuant to Federal Rule of Civil Procedure 59(a), ‘“it is the duty of the judge to set aside the verdict and grant a new trial, if he is of the opinion that [1] the verdict is against the clear weight of the evidence, or [2] is based upon evidence which is false, or [3] will result in a miscarriage of justice . . . .’” Atlas Food Sys. & Servs., Inc. v. Crane Nat’l Vendors, Inc., 99 F.3d 587, 594 (4th Cir. 1996) (quoting Aetna Cas. & Sur. Co. v. Yeatts, 122 F.2d 350, 352-53 (4th Cir. 1941) (numerals added)).

         When ruling on this motion, I must remember that “[t]hough a person is entitled to a fair trial, he is not entitled to a perfect one. He does not have a right to a new trial merely because harmless error may have been committed.” Mills v. Mealey, 274 F.Supp. 4, 7 (W.D. Va. 1967); see Fed. R. Civ. P. 61 (providing that “the court must disregard all errors and defects that do not affect any party’s substantial rights.”)

         The defendants have set forth various reasons why they believe a new trial should be granted. Specifically, they argue that (1) certain of the jurors’ exposure to disparaging and erroneous news coverage of the case during the trial, in violation of the court’s instructions, poisoned the defendants’ case; (2) evidence regarding the suspension of Dr. Bailey’s medical license, even though later excluded, was unfairly prejudicial; (3) the court should not have excluded testimony from Dr. Paschall as to statements by Mr. McKee’s wife; (4) on the issue of respondent superior, the court erred in allowing evidence that defendant AEP was obligated by contract to provide Dr. Bailey with medical malpractice insurance; (5) Jury Instruction No. 14A, which advised that Mr. McKee did not have a duty to arrange his own CT scan, should not have been given; (6) the defendants’ proposed jury instruction, again telling the jury to disregard Dr. Bailey’s lack of medical license, should have been given; (7) the testimony of the plaintiff’s expert economist Dr. Lynch should have been excluded; and (8) this court was without subject-matter jurisdiction. Several of these issues were the subject of separate briefing and argument that occurred prior to trial. At oral argument on the present motion, the defendants agreed that their first two points - the media exposure and evidence relating to Dr. Bailey’s medical license - serve as the primary basis for their motion. Thus, my analysis will focus on those two issues, and I will more briefly discuss the plaintiff’s other arguments.

         A. Jury Exposure to Extrajudicial Communications.

         Twelve jurors were empanelled to try the case. After their selection, the jurors were instructed not to read or listen to news reports of the case. (Tr. 61, Dec. 2, 2015, ECF No. 121.)

         Before the beginning of the third day of trial, on Friday, December 4, counsel for the defendants informed the court that WCYB-TV, a local NBC-affiliated television station, had broadcast prejudicial information about Dr. Bailey and had published on its website the false implication that the trial involved the over-prescription of narcotic drugs. While defense counsel did not have copies of the news reports at that time, they later filed them, either later during the trial or in connection with the present motion. Defense counsel at first contended that the broadcast had been that morning, but no evidence of a broadcast on the morning of December 4 has been presented - the offending news reports appear to have been the evening before, as confirmed by several of the jurors and later evidence submitted by the defense.

         The WCYB website article, posted at 5:35 p.m. on Thursday, December 3, stated as follows:

(Headline) Va. doctor on trial for deadly malpractice involving drugs By Lenny Cohen, Digital Media Manager, (Photograph of Dr. Bailey)
A civil trial has begun against a Russell County doctor accused of malpractice.
The estate of Shawn Matthews McKee is suing Dr. Dwight Bailey and two other defendants for $3 million.
McKee died while under Bailey’s care: one of five patients over a period of six years.
Last year, the Virginia Department of Health suspended Bailey’s license to practice medicine for two years, finding Bailey prescribed large amounts of opiate drugs to several patients with drug-seeking behavior.
Bailey and his co-defendants have denied any negligence in the treatment of McKee.

(ECF No. 110-1.) Upon learning of this post from their client, defense counsel immediately contacted WCYB and the website article was revised at 9:32 p.m. that night. The revised post removed the words “involving drugs” in the headline and removed the portions of the article about the deaths of other patients and the grounds for Dr. Bailey’s license suspension. It also stated that Dr. Bailey “will have the ability to get his license back in the future.” (ECF No. 101.)

         In the meantime, a WCYB on-air news reader reported on the trial on December 3 at 5:05 p.m. and again at 6:06 p.m. The broadcast account was as follows:

A civil trial has begun against a Russell County doctor accused of malpractice. The Estate of Shawn McKee is suing Dr. Dwight Bailey and two other defendants for $3, 000, 000. McKee died while under Bailey’s care, 1 of 5 patients over a period of 6 years. The Virginia Department of Health has suspended Bailey’s medical license since last year saying Bailey prescribed large amounts of opiate drugs to several patients with drug seeking behavior. Bailey and his co-defendants have denied any negligence in the treatment of McKee.

(ECF No. 148-1.)[4] Another report was broadcast by WCYB that night at 11:01 p.m., which used the language from the revised website article. The same on-air report was broadcast that night during the 10:00 p.m. local news on WCYB’s sister Fox-affiliated station, WEMT, which utilizes WCYB’s local news operation. Each of the news readings lasted approximately 22 seconds. (Video, Def. Ex. 1, ECF No. 148.)

         Prior to serving as an emergency department physician, Dr. Bailey had a family practice, and the news broadcasts each showed a view of Dr. Bailey’s former offices, with a sign posted on the door stating “Family Health Care CLOSED until Further Notice.” (Id.)

         The unrevised internet posting allowed public comments to be posted about the story, and there were many such comments, some pointing out the error in the nature of the claim made against Dr. Bailey in the lawsuit and others either generally praising or criticizing Dr. Bailey. (ECF No. 101.)

         After defense counsel had received a copy of the website posting and provided it to the court during the afternoon of December 4, I addressed the matter with the jury. With all of the jury members present in the courtroom, I inquired of them as follows:

I have a matter that I need to bring up with you. It appears that this morning there was, there was a news article about this case on WCYB television, and for those of you who may not be in this immediate area, I don’t know if it’s, if everyone gets CYB, but it’s, it’s the television station located in Bristol, Channel Five, and it was a news article on their morning news. In addition, it was on their internet site, and they also have a Facebook site, too. And it went into the case. And I need to ask if any of you saw that, read it.

(Tr. 139-40, Dec. 4, 2015, ECF No. 125.)

         Several jurors responded in the affirmative. Accordingly, I returned the jury to the jury room, and asked for each juror who had been exposed to the stories to enter the courtroom for individual questioning.

         I first questioned Juror Harr, who had advised that he had been exposed to one of the television broadcasts. In response, the following exchange occurred:

MR. HARR: I actually didn’t see it. I was in the other room, it was on TV, and it came on, and it said something to the order of Dwight Bailey. I don’t even remember what all it said. But it was about the case.
THE COURT: I mean, did you get anything from it?
MR. HARR: No, sir.
THE COURT: Anything derogatory about Dr. Bailey?
MR. HARR: No, sir. I didn’t see, I was in the other room. By the time I got in there it was gone on to something else. But I did hear it.
THE COURT: And what is your recollection of what you heard? If you can recall.
MR. HARR: It was about the case. I mean, Dwight Bailey, and Appalachian Physicians, or something. That’s about it. I can’t remember much about it now.
THE COURT: Let me ask you this, Mr. Harr. Anything that you heard affect your ability to be fair and impartial?
Mr. HARR: No, sir, it would not.
THE COURT: Did you reach any conclusions about the case; that is, who should prevail in the case from anything you heard?
MR. HARR: No, sir, I did not. I do remember there was an ...

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