Submitted: March 13, 2018
from United States District Court for the Eastern District of
Missouri - St. Louis
WOLLMAN, SHEPHERD, and ERICKSON, Circuit Judges.3
WOLLMAN, CIRCUIT JUDGE.
Grussing appeals the district court's denial of her
motion for a new trial under Federal Rule of Civil Procedure
59(a)(1)(A), contending that the district court erroneously
limited her cross-examination of the defendants' expert
witness and that it failed to correct defense counsel's
misstatement of law during closing argument. We affirm.
Corey Solman, Jr., performed arthroscopic surgery on
Grussing's knee on June 26, 2014. At her post-surgery
follow-up appointment on July 9, 2014, Grussing reported
swelling in her knee to Dr. Solman's physician assistant,
Jason Gay. Gay recommended that she attend physical therapy
to treat her symptoms. Dr. Solman did not examine Grussing
during this visit.
returned to Dr. Solman's office on July 18, 2014, and
again reported pain and swelling. Dr. Solman aspirated
Grussing's knee, draining off 60cc of synovial fluid. Dr.
Solman noticed that the fluid looked normal aside from a
small amount of blood and therefore decided not to test the
fluid for infection.
continued to experience pain and swelling during the
following months. She was seen by a different physician in
October 2014, who aspirated Grussing's knee and sent the
synovial fluid in for analysis. The test results showed that
the knee was chronically infected, as a result of which
Grussing underwent a permanent total knee replacement in
thereafter filed suit in federal district court, which had
jurisdiction over these diverse parties. Grussing alleged
that Dr. Solman and Orthopedic and Sports Medicine, Inc.
(collectively defendants) committed medical malpractice by
failing to diagnose and treat a post-surgery infection in her
knee. The primary issue at trial was whether Dr. Solman
breached the standard of care when he decided not to test the
synovial fluid aspirated from Grussing's knee during her
July 18, 2014, appointment.
opened her case by presenting Dr. Solman's deposition
testimony, during which he acknowledged that fluid that does
not appear to be cloudy can test positive for bacterial
expert witness testified that because Grussing had sudden
complaints of onset pain and swelling post-surgery, the
synovial fluid should have been sent in for testing, and that
Dr. Solman's failure to do so breached the standard of
care appropriate to the circumstances.
defense's expert witness, Dr. Matthew Matava, disagreed
and instead testified that there was no way to confirm that
Grussing's knee was infected when she was examined by Dr.
Solman on July 18, 2014, because Grussing did not exhibit
constitutional signs of an infection-fever, redness, sweats,
chills, and abnormal looking synovial fluid. The following
exchange occurred during Dr. Matava's cross-examination:
Grussing's Counsel: Okay. Did [Dr. Solman] actually rule
out infection by any means other than looking at the fluid?
Dr. Matava: He looked at the fluid, he took the context of
the patient's history or lack thereof in ...