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Family's Erb's Palsy Appeal Fails Due to Lack of Evidence

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By Casey C. Sullivan, Esq. on June 01, 2015 3:57 PM

The parents of a young boy injured during birth lost their appeal to the First Circuit last Friday, largely due to lack of evidence to support their claims.

When F.A.F.R. was born, his shoulders failed to deliver after his head emerged, resulting in Erb's Palsy, which causes weakness and loss of motion in the arms. His parents sued in federal court in Puerto Rico and the jury found that both the delivering doctor, Dr. Capre-Febus, and the hospital, Dorado Health, had been negligent, yet only the doctor's negligence had caused F.A.F.R.'s injuries.

The family appealed, arguing that the court had error in not presenting their preferred jury instructions and not allowing them to use leading questions against a nurse present at delivery. In both cases, the parents failed to present evidence to show that the lack of leading questions was prejudicial or to support the legal theory underlying their jury instructions, the First Circuit ruled.

Both Negligent, Only One Responsible

After F.A.F.R.'s difficult birth, his parents, Liza Rosa-Rivera and Edgard Franqui-Famos, brought suit on his behalf, claiming that both the hospital and delivering doctor had been negligent. As the First Circuit describes it, the jury was "partially convinced" of the Plaintiffs' negligence claims, finding both the hospital and doctor negligent, but only Dr. Capre-Febus's negligence to be the proximate cause of F.A.F.R.'s Erb's Palsy. He was ordered to compensate Plaintiffs slightly over $800,000.

On appeal, the Plaintiffs claimed that the court erred in failing to allow them to ask a nurse leading questions. Under the federal rules, leading questions are permitted when a party is a hostile witness, adverse party or a witness identified with an adverse party. This is common legal knowledge -- to everyone except the presiding judge, who said that the Plaintiffs could only ask questions if the witness became hostile. That she was associated with the hospital, an adverse party, didn't matter.

The following examination, Plaintiffs argued, was " a disaster." While it seems that the judge's ruling was wrong, the First Circuit said, there was no showing that it was prejudicial. The Plaintiffs could not provide any information that would have been elicited had they been allowed to lead the witness. Only in a post oral-argument letter did they claim that leading questions would have revealed substantial information. That's a bit too late, the First found.

No Evidence for Jury Instruction Either

Similarly, the Plaintiffs had little evidence to support their jury instructions argument. They had argued for an instruction that emphasized the need for hospitals to oversee and remove physicians in the case of repeat or gross malpractice. Dr. Capre-Febus had been sued eight times for malpractice. Yet, they provided no evidence that the hospital had not overseen him properly. A party is entitled to have its legal theory presented to the jury only if supported by evidence, the First reminded them. Here, as with their leading question claims, the Plaintiffs fell short.

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