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Grussing v. Orthopedic and Sports Medicine, Inc.

United States Court of Appeals, Eighth Circuit

June 12, 2018

Leslie Grussing Plaintiff- Appellant
v.
Orthopedic and Sports Medicine, Inc., A Missouri Corporation; Corey Solman, Jr., M.D. Defendants - Appellees

          Submitted: March 13, 2018

          Appeal from United States District Court for the Eastern District of Missouri - St. Louis

          Before WOLLMAN, SHEPHERD, and ERICKSON, Circuit Judges.3

          WOLLMAN, CIRCUIT JUDGE.

         Leslie Grussing appeals the district court's[1] 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.

         I. Background

         Dr. 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.

         Grussing 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.

         Grussing 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 February 2015.

         Grussing 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.

         Grussing 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 infection.

         Grussing's 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.

         The 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 ...

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