United States v. Samuel Acosta

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1702
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George Robert Studnicka, *
*
Plaintiff/Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
A. Daniel Pinheiro; Mayo Clinic *
Facility; Kerry D. Olsen, *
*
Defendants/Appellees. *
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Submitted: May 12, 2010
Filed: August 25, 2010
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Before WOLLMAN, SMITH, and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.
George Studnicka filed suit against Dr. A. Daniel Pinheiro, Dr. Kerry D. Olsen,
and the Mayo Clinic, alleging a cause of action for common-law battery. Studnicka
claimed that the two physicians performed surgery on him without his informed,
written consent, and that this action constituted battery under Minnesota law.
Studnicka moved for summary judgment on the battery claim, but the district court 1
denied his motion. A jury subsequently found for the defendants. Studnicka appeals
1The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.

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the district court’s order denying summary judgment. Because we conclude that
Studnicka presents no issue that he properly preserved for review, we affirm.
I.
While an inmate at a federal prison facility in Rochester, Minnesota, Studnicka
complained of persistent throat pains. In February 2001, he was referred to the Mayo
Clinic for an evaluation by Dr. Pinheiro, a throat specialist. Testing detected
cancerous tumors in Studnicka’s neck. At the Mayo Clinic on March 27, 2001, Dr.
Pinheiro recommended that Studnicka undergo surgery to remove the tumors. Dr.
Pinheiro’s notes from that discussion suggest that Studnicka agreed.
That same day, Studnicka met with Dr. Olsen, another physician at the Mayo
Clinic. Dr. Olsen examined Studnicka and confirmed Dr. Pinheiro’s diagnosis. Dr.
Olsen concurred in the recommendation for invasive neck surgery, and his notes state
that he and Studnicka discussed the “goals, rationale, [and] risks” of that
recommendation.
Dr. Pinheiro and Dr. Olsen performed the surgery on April 11, 2001. Notes
taken by a nurse before the operation show that Studnicka identified the location and
purpose of the neck surgery. Moreover, a surgical record made after Studnicka
entered the operating room indicates that he “verbalize[d] understanding” of the
surgical instructions. Studnicka’s medical records, however, contain no written
consent to the procedure.
In April 2005, Studnicka filed the instant action, alleging that Dr. Pinheiro, Dr.
Olsen, and the Mayo Clinic had committed battery.2 Studnicka moved for summary
2Studnicka included several other claims, but later withdrew or dismissed them
with prejudice.
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judgment on the battery claim in April 2008. He asserted that under Minnesota law,
a signed form is required to show consent for surgery, and because the defendants
could produce no such form, he had proven battery as a matter of law. Studnicka
based his argument on a Minnesota hospital licensure statute. He argued that the
Minnesota statute incorporated a federal Medicaid and Medicare regulation, which,
in turn, required hospitals to obtain a patient’s written consent for elective surgery.
See Minn. Stat. § 144.55, subd. 3(a); 42 C.F.R. § 482.51(b)(2). According to
Studnicka, this statute established a “standard of conduct” that the defendants
violated.
The district court denied Studnicka’s motion, ruling that the absence of a signed
consent form did not necessarily prove battery. The district court reasoned that
Minnesota courts have not restricted the methods of proving consent in a battery
action to a signed form. Studnicka v. Pinheiro, No. 05-723, 2008 WL 4717471, at *2
(D. Minn. Oct. 24, 2008) (citing Kohoutek v. Hafner, 383 N.W.2d 295, 298 (Minn.
1986)). The court also observed that any alleged standard of conduct did not apply
to a battery claim, because the form of consent is not determinative under Minnesota
battery law. Id. Studnicka later asked the district court to reconsider its decision, but
the court denied that motion.
Later in the pretrial process, on February 5, 2009, Studnicka filed a “motion in
limine” requesting that the district court hold that the “standard of conduct” for
consent to a surgical procedure requires a signed form. The court denied this motion,
and repeated its conclusion that consent may be express or implied in Minnesota.
The case proceeded to trial, and Studnicka argued that he did not consent, in
writing or otherwise, to the neck surgery. Studnicka claimed that he understood only
that he underwent surgery to treat his carpal tunnel syndrome. The defendants
presented notes from Studnicka’s preoperative evaluations and from the surgical
record suggesting his oral and implied consent to the neck surgery. On February 20,
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2009, the jury found that Dr. Pinheiro, Dr. Olsen, and the Mayo Clinic had not
committed a battery on Studnicka. Studnicka did not move for judgment as a matter
of law during or after trial.
II.
In his brief on appeal, Studnicka attacks the district court’s ruling that “legally
effective consent for elective surgery in Minnesota could be verbal or implied.” It is
well settled, however, that “[w]e will not review a district court’s denial of a motion
for summary judgment after a trial on the merits.” EEOC v. Sw. Bell Tel., L.P., 550
F.3d 704, 708 (8th Cir. 2008); see also Eaddy v. Yancey, 317 F.3d 914, 916 (8th Cir.
2003). Studnicka had an opportunity to litigate the consent issue at trial, and we will
not review at this juncture the district court’s pretrial ruling that denied Studnicka’s
motion for summary judgment.
The proper vehicle for Studnicka to preserve his legal contention was a motion
for judgment as a matter of law under Federal Rule of Civil Procedure 50. Framed in
the language of that rule, Studnicka’s claim is that no “reasonable jury” could, under
Minnesota law, have “a legally sufficient evidentiary basis” to find consent for
elective surgery without a signed consent form. See Fed. R. Civ. P. 50(a). At the
close of evidence, pursuant to Rule 50(a), and after the jury’s verdict, pursuant to Rule
50(b), Studnicka could have renewed the argument raised in his motion for summary
judgment. If the district court had denied properly filed motions under Rule 50, then
Studnicka could have appealed the denial upon the entry of final judgment. See
Eaddy, 317 F.3d at 916. But because Studnicka did not avail himself of this
procedure, there is no basis for our review of Studnicka’s challenge to the sufficiency
of the evidence. Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 407
(2006); Sw. Bell, 550 F.3d at 708-09.
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At oral argument, Studnicka suggested for the first time that he sought to appeal
the district court’s “evidentiary” ruling denying his motion in limine. In that pretrial
motion, Studnicka asked the court to hold that consent to surgery in Minnesota
requires a signed form. Studnicka waived this argument by failing to mention it in his
appellate brief. See Twin Cities Galleries, LLC v. Media Arts Group, Inc., 476 F.3d
598, 602 n.1 (8th Cir. 2007). In any event, the so-called motion in limine, which
merely reiterates Studnicka’s “battery per se” theory, was in substance another motion
requesting reconsideration of the order denying the motion for summary judgment.
For the reasons discussed, there is no basis for us to review this pretrial ruling absent
a motion for judgment as a matter of law under Rule 50.
The judgment of the district court is affirmed.
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