United States District Court, W.D. Virginia, Abingdon Division
KAREN TAYLOR BAGHERI, ADMINISTRATOR OF THE ESTATE OF SHAWN MATTHEW MCKEE, DECEASED, Plaintiff,
DWIGHT L. BAILEY, M.D., AND APPALACHIAN EMERGENCY PHYSICIANS, Defendants.
Cynthia D. Kinser and Benjamin D. Byrd (Travis J. Graham on
brief), Gentry Locke, Roanoke, Virginia, for Plaintiff;
C. Miller and James N.L. Humphreys, Hunter, Smith &
Davis, LLP, Kingsport, Tennessee, for Defendants.
OPINION AND ORDER
P. Jones, United States District Judge.
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.
following facts are taken from the record of the trial and
the Motion for a New Trial.
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.
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.
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.
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.
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.
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).
plaintiff, Mr. McKee’s mother and administrator of his
estate, filed suit against the defendants on October 28,
2014. 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.
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.
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.
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.
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.
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.
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.
argument and instructions, the jury deliberated for
approximately one hour 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. The defendants
now ask me to reject that verdict and order a new trial. For
the reasons explained below, I will deny 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
 the verdict is against the clear weight of the evidence,
or  is based upon evidence which is false, or  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)).
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.”)
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.
Exposure to Extrajudicial Communications.
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.
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
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,
LCohen@wcyb.com (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.)
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
(ECF No. 148-1.) 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.
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.)
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.)
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
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.)
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
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