Eighth Circuit Upholds Exclusion of Evidence About Other Patients in Medical Malpractice Trial – Bair v. Callahan

By January 20, 2012 July 18th, 2019 Medical Malpractice

As a Missouri medical malpractice attorney, I was interested to read a recent Eighth U.S. Circuit Court of Appeals decision on what evidence is admissible in a medical malpractice case. This is frequently an important question, because medical privacy laws may restrict what can be released — yet having evidence admitted is vital to plaintiffs’ ability to prove their cases. In Bair et al. v. Callahan, Robin Bair and Francis Zephier, a married couple from South Dakota, wanted to introduce evidence related to their doctor’s treatment of other patients, but the federal district court denied it. After a jury found for the doctor, Robert Callahan, they appealed the evidentiary ruling as well as the verdict. The Eighth upheld the trial court on both counts.
Bair suffered from a vertebral crack and went to Callahan for spinal fusion surgery, which is intended to repair the break with a bone graft. Not all bone grafts are successful, but placing a screw correctly increases the change of fusion and decreases the chance of nerve damage or pain. During the surgery, Callahan changed his mind about the placement of the screws because one did not have good “purchase on the bone” in its original placement. That spinal fusion was not successful and also left Bair with continued back and leg pain. A second surgery performed by another doctor replaced all the hardware but also did not result in a fusion. Bair and Zephyr ultimately sued Callahan in federal trial court, alleging he placed the screws in an abnormal position, causing the pain and the need for a second surgery.
Callahan moved to exclude evidence about his treatment of other patients, particularly those with misplaced screws, and the court eventually agreed. Concerned about “mini-trials,” the judge allowed Bair to ask just one question at trial about prior treatment: whether or not Callahan had ever misplaced screws on other patients at the same clinic. The jury eventually found for Callahan and the couple moved unsuccessfully for a new trial, arguing that the verdict was against the evidence and also that they should have been able to introduce evidence about other patients. After a hearing, the court denied that motion. This appeal followed.
The Eighth Circuit upheld, agreeing with the trial court on both counts. Under Rule 404(b) of the federal rules of judicial procedure, it said, it was correct to exclude evidence of Callahan’s treatment of other patients. That rule says evidence of other acts or wrongs is not admissible merely to show the actor’s character, though it may be admissible as proof of knowledge. In this case, the Eighth found that the knowledge the couple wanted to prove is not the type of knowledge the rule seeks. Callahan had the knowledge to perform the surgery, the court said; Bair merely sought to show that he applied it wrongly. It would be prejudicial to admit the evidence, because it would distract the jury with the issue of whether Callahan had a propensity to commit malpractice. Similar reasoning applies to Rule 403, the court noted. Finally, the Eighth ruled that the trial court property deferred to the jury’s weighing of evidence when it declined to order a new trial.
As a St. Louis medical malpractice lawyer, I confront the issue in my work of whether prior bad acts by the defendant are relevant to my own case. As the Eighth Circuit noted, federal rules don’t allow certain evidence to be admitted because it might prejudice the jury — that is, it might convince them to rule a certain way even when the evidence is irrelevant to the issue at hand. This is frustrating for plaintiffs when it prevents them from introducing evidence that seems to prove their case, but it helps protect defendants from “character assassinations” and jury decisions based on social prejudice. (Consider the same rule in the context of a criminal case — having stolen in the past is not a reliable way to gauge whether the defendant is guilty of theft today.) As a southern Illinois medical malpractice attorney, I work hard to build cases that rely on strong direct evidence that cannot be excluded.


If you believe you or someone in your family suffered an injury because a medical professional made a serious mistake, call Carey, Danis & Lowe today for a free consultation. You can reach us through our website or call 1-877-678-3400 toll-free.
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