The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
The Court has before it a motion for new trial. The motion is fully briefed and at issue. For the reasons explained below, the Court will deny the motion. The Court will not repeat the facts of this case, which have been set forth in detail in prior opinions.
While Rule 59 does not specify the grounds on which a new trial may be based, the Circuit has held that a new trial is warranted under Rule 59(a) only if the verdict is against the clear weight of the evidence, is based on false evidence, or to prevent a miscarriage of justice. Shimko v. Guenther,505 F.3d 987 (9th Cir. 2007). In resolving the motion, the Court can weigh the evidence and assess the credibility of witnesses. Id.
An error in instructing the jury in a civil case requires reversal unless the error is more probably than not harmless. Dang v. Cross, 422 F.3d 800, 811 (9th Cir.2005). The Court must presume prejudice where civil trial error is concerned and the burden shifts to the opposing party to demonstrate that it is more probable than not that the jury would have reached the same verdict had it been properly instructed. Id.
With regard to evidentiary challenges, "a party must demonstrate that the allegedly erroneous evidentiary ruling more probably than not was the cause of the result reached." Elsayed Mukhtar v. California State University, Hayward, 299 F.3d 1053, 1066 (9th Cir. 2002).
Introduction to Challenge to Dr. Rosen's opinions
The Muellers argue that the Court improperly allowed Dr. Peter Rosen to testify as an expert for defendant Dr. Macdonald. Dr. Rosen offered opinions that
(1) Taige Mueller had a serious bacterial infection, (2) that Dr. Macdonald's risk assessment that Taige had a 5% chance of suffering death if not treated was "a pretty good guess," see Transcript (June 21, 2010) at p. 93, and (3) that "Dr. Macdonald saved her life." Id. at 155. The Court will review each opinion after setting forth the issue under consideration and Dr. Rosen's qualifications to address that issue.
Issue Addressed by Dr. Rosen
The sole issue regarding defendant Dr. Macdonald was whether he falsely exaggerated the risk to Taige Mueller in order to deprive the Muellers of their parental rights. Based on Taige's symptoms, Dr. Macdonald made a differential diagnosis -- that is, he compiled a list of Taige's potential problems with the worst problems at the top of the list. At the top of his list was a serious bacterial infection that could be lethal, like meningitis or sepsis. See Transcript (June 15, 2010) at p. 34-35. Dr. Macdonald told the police officers that about 5% of infants with a serious bacterial infection would die without treatment. The Muellers'expert, Dr. Shapiro, testified that numerous medical studies peg the percentage at less than 1%, rendering Dr. Macdonald's 5% figure "[g]rossly inaccurate," see Transcript (June 15, 2010) at p. 197, 208. The literature was so uniform on this point, Dr. Shapiro testified, that no physician familiar with the literature would believe as true a risk assessment of 5%. Id. at 198, 212. Qualifications of Dr. Rosen
Dr. Rosen is a board certified emergency room physician who has been practicing emergency medicine for over forty years. He was Director of Emergency Medicine at the University of Chicago where he established the third emergency medicine residency in the country at the time. Id. at p. 48. In later years he started emergency medicine residency programs at Denver General Hospital and the University of California at San Diego. Id. at p. 50. In addition to his experience in emergency medicine, he had "a fairly extensive experience in internal medicine and pediatrics as well as in general surgery." Id. at p. 52. This included experience in evaluating and treating newborn infants in emergency rooms. Id. at p. 62. He has written a number of textbooks on pediatric medicine, id. at p. 58-59, and currently teaches emergency medicine at Harvard Medical School and the University of Arizona School of Medicine. Id. at p. 55.
Taige was five weeks old when she was brought into the emergency room with a fever. Dr. Rosen testified that "in that age child, fever is very rare." Id. at pp. 70-71. He testified that "[j]ust from the fever alone, I'm concerned that the child has a serious infection." Id. at p. 70. It was also significant to him that Taige was lethargic and not feeding normally. Id. at pp. 72-73. He noted that the infection is not easily diagnosed as viral or bacterial, but it's well known that viral infections are frequently superseded by bacterial infections. What starts as a viral infection interferes with the child's normal defenses, and then there is an overgrowth of bacteria.
And what started as a viral disease becomes a bacterial disease.
Id. at p. 74. He concluded that Taige "certainly behaved as if" she had a serious bacterial infection. Id. at p. 83. This opinion appeared to be based on (1) Taige's fever, (2) her not feeding normally, (3) her lethargy, and (4) the ...