United States v. Edward Joseph Lowen

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2734
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Manley Stowell; Enid Stowell, *
*
Appellants, *
*
v. * Appeal from the United States
* District Court for the
Paul Huddleston, M.D.; Mayo * District of Minnesota.
Clinic-Rochester, a non-profit *
corporation, *
*
Appellees. *
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Submitted: March 16, 2011
Filed: July 7, 2011
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Before SMITH, ARNOLD, and SHEPHERD, Circuit Judges.
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ARNOLD, Circuit Judge.
After Dr. Paul Huddleston, an orthopedic surgeon, performed spine surgery on
Manley Stowell for his back pain, Mr. Stowell awoke completely blind in both eyes;
the apparent cause of this loss of vision was posterior ischemic optic neuropathy
(PION), a rare medical condition that results from a stroke to the optic nerves.
Mr. Stowell and his wife, Enid Stowell, then brought an action under Minnesota law
against Dr. Huddleston and Mayo Clinic, claiming that Dr. Huddleston, though not
negligent in performing the surgery itself, had negligently failed to inform Mr. Stowell
that a risk of permanent blindness accompanied the procedure. The plaintiffs sought

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1The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
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damages from Dr. Huddleston and Mayo for Mr. Stowell's blindness and the resulting
loss of their "freedom and emotional stability."
To satisfy Minnesota's expert certification requirement for medical malpractice
cases, the plaintiffs served an affidavit of Dr. Steven Robin on the defendants.
See Minn. Stat. § 145.682, subds. 2, 4. In that affidavit, Dr. Robin averred that based
on his review of Mr. Stowell's medical records, his "training and experience as an
ophthalmologist," and his familiarity with the applicable standard of care, he had
reached certain opinions with respect to Mr. Stowell's case to a reasonable degree of
medical probability. The defendants moved for summary judgment, challenging
Dr. Robin's qualifications to offer those opinions. They argued, among other things,
that Dr. Robin was not qualified to testify about the appropriate standard of care
because he was not an orthopedic surgeon and the plaintiffs had not shown that he had
any training or experience in that medical speciality. The plaintiffs responded to the
defendant's motion, in part, with an amended affidavit of Dr. Robin. In that affidavit,
Dr. Robin explained that he based some of his opinions on his experience performing
ophthalmologic surgeries that carried a risk of blindness that was statistically similar
to the risk of PION-induced blindness in orthopedic spine surgeries. The remainder
of his opinions were based on statements of Mr. Stowell's treating physicians at Mayo
and some "authoritative peer reviewed" medical literature.
The district court 1 considered Dr. Robin's amended affidavit but granted
summary judgment for the defendants. In coming to that decision, the court found
that Dr. Robin was not qualified to offer expert opinion on the applicable standard of
care and that his reliance on sources of information outside his own training and
experience did not cure this lack of qualification. The court then found that without
this expert testimony the plaintiffs had failed to satisfy the requirements of Minn. Stat.

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§ 145.682, and it entered judgment on that basis. We review the district court's
interpretation of state law, including § 145.682, de novo. Reimer v. City of Crookston,
326 F.3d 957, 961 (8th Cir. 2003); see also Bellecourt v. United States, 994 F.2d 427,
431 (8th Cir. 1993). We review the district court's determination of an expert
witness's competency for an abuse of discretion. See General Electric v. Joiner, 522
U.S. 136, 141-43 (1997); see also Williams v. Wadsworth, 503 N.W.2d 120, 123-25;
Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983).
I.
The plaintiffs argue first that the district court abused its discretion when it
determined that Dr. Robin was not qualified to provide expert testimony for the
purpose of satisfying § 145.682. That statute requires a plaintiff to file two affidavits
in any action against a medical care provider in which "expert testimony is necessary
to establish a prima facie case": In the first affidavit, which is filed with the complaint,
the plaintiff's attorney must attest to having had the case reviewed by a medical expert
who concluded that the defendant breached the standard of care. Minn. Stat.
§ 145.682, subds. 2, 3(a). Within 180 days thereafter, the plaintiff must file a second
affidavit identifying all experts who will testify on the plaintiff's behalf at trial and
outlining the substance of their testimony. Minn. Stat. § 145.682, subds. 2, 4.
Testimony of a witness who is not qualified to offer expert opinion cannot satisfy this
disclosure requirement, Broehm v. Mayo Clinic Rochester, 690 N.W.2d 721, 726
(Minn. 2005), and failure to comply with the statute requires dismissal of the case
with prejudice, id.; see also Minn. Stat. § 145.682, subd. 6.
The competency of a witness to provide expert medical testimony on the
standard-of-care issue "depends upon both the degree of the witness' scientific
knowledge and the extent of the witness' practical experience with the matter which
is the subject of the offered testimony." Reinhardt, 337 N.W.2d at 93. Although
education and professional training are important considerations, it is the
"occupational experience" of a potential witness that is of "controlling importance"

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when determining competency. Cornfeldt v. Tongen, 262 N.W.2d 684, 692 (Minn.
1977) (internal quotation marks and citations omitted). In particular, an expert
witness must possess a "practical knowledge of what is usually and customarily done
by physicians under circumstances similar to those which confronted the defendant."
Id. at 692-93 (internal quotation marks and citations omitted); see also Lundgren v.
Eustermann, 370 N.W.2d 877, 880 (Minn. 1985).
In his amended affidavit, Dr. Robin opined that "prolonged prone lumbar spine
surgery," the type of surgery that Dr. Huddleston performed on Mr. Stowell, is
"associated with a risk of permanent blindness." Dr. Robin also stated that prior to the
date of Mr. Stowell's surgery this association had been discussed in "authoritative peer
reviewed literature," which had found that between 0.2% and 0.028% of all spine
surgeries resulted in permanent blindness "depending on patient and procedure risk
factors." According to Dr. Robin, it was "accepted medical practice" at the time of
Mr. Stowell's surgery in March, 2006, to know of this association and thus the "risk
of permanent blindness from prolonged prone lumbar spine surgery." Dr. Robin also
attested that the "standard of care in Minnesota" required a "reasonable physician" to
inform patients of such a risk of blindness (no matter the cause) if it was associated
with an elective surgical procedure and had an incidence "in the range of 0.2% and
0.028%."
The district court found that Dr. Robin was not qualified to offer any of these
proposed opinions. The court stated that Dr. Robin lacked the necessary "training or
experience" to testify about "the likelihood that PION would result from a prolonged
prone spine surgery" or whether it was accepted medical practice for orthopedic
surgeons to know of that risk. The court found for similar reasons that Dr. Robin also
could not opine as to what warnings, if any, a "skilled orthopedic surgeon" would
have given to a patient like Mr. Stowell under similar circumstances. In support of
these findings, the court reasoned that "Dr. Robin is an eye surgeon, not a spine
surgeon" and noted that nothing in Dr. Robin's amended affidavit indicated that he had

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"any experience performing surgeries similar to a prolonged prone spine surgery on
patients similar to Mr. Stowell under similar circumstances." The court therefore
concluded that Dr. Robin's medical practice was "insufficient to establish his
knowledge of or experience with what warnings are customarily given by orthopedic
surgeons prior to performing prolonged prone spine surgery on a patient similar to Mr.
Stowell."
After reviewing the record, we cannot say that the district court abused its
discretion in finding that Dr. Robin was not qualified to testify on these matters. Even
if Dr. Robin possessed a sufficient level of "scientific knowledge," see Reinhart, 337
N.W.2d at 93, the record is clear (and the plaintiffs admit) that Dr. Robin has
absolutely no practical training or experience performing any type of orthopedic
surgery. Dr. Robin similarly lacks any practical experience discussing with patients
the potential risks of prolonged prone spine surgery (or any other orthopedic surgery)
and obtaining their informed consent for the same. In that respect, his background is
starkly different from expert witnesses in the cases the plaintiffs rely on, see
Cornfeldt, 262 N.W.2d at 690-91; Fiedler v. Spoelhof, 483 N.W.2d 486, 489 (Minn.
Ct. App. 1992), and Broehm, 690 N.W.2d at 726-27, all of whom had both sufficient
knowledge and experience in the relevant subject matter to testify to the applicable
standard of care despite it being outside of their respective medical specialties.
Because Dr. Robin had no "practical knowledge of what is usually and customarily
done" by orthopedic surgeons under circumstances similar to those that confronted Dr.
Huddleston, see Lundgren, 370 N.W.2d at 880, he had no basis in his own experience
for offering any expert opinion concerning what Dr. Huddleston should have known
or done.
The district court similarly did not abuse its discretion by concluding that
Dr. Robin's attempted reliance on sources of information outside his own knowledge
and experience failed to cure this lack of expert witness competency. The first of
these outside sources were two medical journal articles that Dr. Robin cited to in his

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amended affidavit: William R. Stevens et al., Ophthalmic Complications After Spinal
Surgery, 22 Spine 12, 1319-24 (June 15, 1997) and Shu-Hong Chang & Neil R.
Miller, The Incidence of Vision Loss due to Perioperative Ischemic Optic Neuropathy
Associated With Spine Surgery, The John Hopkins Hospital Experience, 30 Spine 11,
1299-1302 (June, 21, 2005). Dr. Robin referred to these "authoritative peer reviewed"
articles for their findings that between 0.028% and 0.2% of all spine surgeries result
in permanent blindness; he then used them to support his opinions that prolonged
prone spine surgery is associated with permanent blindness and it was accepted
medical practice to know of that risk. The district court, however, found that Dr.
Robin's reliance on these articles did not alter his lack of qualifications. Central to this
determination was the court's related finding that Dr. Robin had misstated the articles'
respective conclusions. In particular, the court found that neither of the statistics had
to do with what Dr. Robin claimed, that is, patients who had become permanently
blind as a result of spinal surgery, because the statistics included patients who had
become partially or only temporarily blind. And the court also noted that the statistics
did not purport to state the risk of harm that Mr. Stowell had suffered, that is, PION-
induced blindness in both eyes (as opposed to blindness from other causes or
occurring only in one eye). Accordingly, because Dr. Robin failed to explain how the
statistics were relevant to the harm that Mr. Stowell suffered, the court determined that
they were insufficient to serve as the basis for his opinions.
The district court came to a similar conclusion with respect to Dr. Robin's
reliance on the clinical notes of Dr. Jacqueline Leavitt, the ophthalmologist at Mayo
who diagnosed Mr. Stowell with PION-induced blindness shortly after his surgery.
According to her clinical notes, she explained that diagnosis to Mr. Stowell, in part,
by telling him that PION was an "unfortunate event that is rarely seen" and that
"anesthesiologists, orthopedists, surgeons and ophthalmologists around the country
were very aware of [PION] and [had] been trying to determine risk factors to no
avail." Dr. Robin incorporated these statements into his amended affidavit, noting
his agreement with them. He thus apparently intended to make those opinions his

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own, as well as to offer them as additional expert testimony that Dr. Huddleston
should have known that prolonged prone spine surgery carried a risk of blindness, the
same opinion that he sought to support with the journal articles. To the district court,
however, the fact that Dr. Robin took these statements directly from another
physician's clinical notes did nothing to qualify him to offer those proposed opinions.
In fact, the court questioned the basis for the incorporated statements themselves since
there was nothing in the record to indicate that Dr. Leavitt, also an ophthalmologist,
was qualified to opine as to the standard of care for orthopedic surgeons. The court
further observed that Dr. Leavitt's statements offered little support for Dr. Robin's
opinions, particularly as to the likelihood that PION would result from prolonged
prone spine surgery and as to whether it was accepted medical practice for orthopedic
surgeons to know of and disclose that risk.
The district court did not abuse its discretion. The plaintiffs argue that
Dr. Robin, as a trained physician who has himself published numerous articles and
book chapters, was qualified "to locate and rely upon information published in peer
reviewed medical journals." The plaintiffs also maintain that Dr. Robin was equally
qualified to locate and rely upon "information contained in [Mr. Stowell's] medical
records, and upon information recorded there by other physicians." We do not dispute
either of these contentions. But it does not follow that Dr. Robin's ability to locate this
sort of information and then use it to form opinions about this case made him
competent to offer those opinions as an expert witness. That information did nothing
to provide him with the sort of "practical experience" that the Minnesota Supreme
Court also requires, see Reinhardt, 337 N.W.2d at 93, and gives "controlling
importance," Cornfeldt, 262 N.W.2d at 692-93, when determining whether an expert
witness may testify as to a standard of care. We think it plain, moreover, that even if
outside information could serve as the sole basis for an expert witness's opinions, that
information would have to support those opinions. As the district court noted in its
decision, it is questionable whether the journal articles and clinical notes do that here.

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In a final attempt to salvage Dr. Robin's proposed testimony, the plaintiffs
contend that the district court erred by misconstruing the risk that, according to their
complaint, needed to be disclosed in this case. The plaintiffs then argue that this error
led the court to narrow the applicable standard of care improperly so that Dr. Robin,
who they contend would have been qualified to offer expert opinion under a correct
characterization of that risk and standard of care, was no longer able to do so. In its
opinion, the district court defined the risk at issue here to be the "risk of PION"
resulting from prolonged prone spine surgery; the court therefore stated that the
applicable standard of care was "whether orthopedic surgeons knew of [PION] and its
likelihood" and "what warnings a skilled orthopedic surgeon would have given"
before performing a prolonged prone spine surgery on a patient like Mr. Stowell. The
plaintiffs contend that this was error because PION is never mentioned in their
complaint. They maintain that the risk that had to be disclosed in this case was the
risk of permanent blindness, no matter the cause, if known by a physician to be
associated with any proposed medical treatment; and the applicable standard of care,
then, is whether "any physician, knowing that there is a risk of blindness associated
with any proposed treatment, has a duty to disclose that risk." The plaintiffs thus
maintain that Dr. Robin, as a physician who performs ophthalmologic surgeries that
carry a known risk of permanent blindness, is qualified to provide expert opinion as
to the standard of care in this case.
After reviewing Minnesota case law, however, we can find no other negligent
nondisclosure case (or medical malpractice case, for that matter) in which the risk to
be disclosed or the standard of care were defined using such generalities. The
plaintiffs fail to identify such an instance in their briefs as well. Rather, they merely
argue that when a court decides a medical malpractice case under Minnesota law, it
must analyze it "in terms of the plaintiff's theory of the case," and they cite in support
Tousignant v. St. Louis County, 615 N.W.2d 53, 59-60 (Minn. 2000) and Broehm, 690
N.W.2d at 735-36 (Anderson, J., concurring specially). But we believe that there is
a fundamental difference between what these cases stand for, that is, accepting a

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plaintiff's theory as to what type of medical malpractice or negligence might have
occurred in a case, and what the plaintiffs seek to do here, that is, to generalize the
applicable standard of care to an extent that it enables an otherwise unqualified
witness to offer expert opinion. None of the cases that the plaintiffs bring to our
attention supports that position, and so we reject their argument and conclude that the
district court did not err by defining the risk to be disclosed and the standard of care
in this case in the way that it did.
II.
The plaintiffs argue next that, even if the district court did not err when it found
that Dr. Robin was not qualified to provide expert testimony, it nevertheless did so
when it granted summary judgment under §145.682, because, in the particular
circumstances presented here, they did not need expert testimony "to establish a prima
facie case," Minn Stat. § 145.682 subd. 2.
A cause of action for negligent nondisclosure "focuses on a doctor's duty to
inform patients of the risks attendant upon certain medical procedures." K.A.C. v.
Benson, 527 N.W.2d 553, 561 (Minn. 1995). To make out a prima facie case, then,
a plaintiff must demonstrate, among other things, that the physician had a duty to
disclose a particular risk of treatment. Id.; see also Reinhardt, 337 N.W.2d at 93. In
establishing that a physician had a duty to disclose a risk, a plaintiff must offer
evidence that the doctor "knows or should know" that the risk exists. Kinikin v.
Heupel, 305 N.W.2d 589, 594 (Minn. 1981); see also Cornfeldt, 262 N.W.2d at 699.
Even then, a duty to disclose arises for only certain types of risks, which the
Minnesota Supreme Court has described as falling into three distinct categories: those
that are of a type "which a skilled practitioner of good standing in the community
would reveal"; those that present a "significant probability" of "death or serious bodily
harm"; and "to the extent that a doctor is aware that a patient attaches a particular
significance to risks not generally considered serious enough to require discussion,"
those risks as well. Benson, 527 N.W.2d at 561; see also Kinikin, 305 N.W.2d at 595.

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The plaintiffs contend that even without expert testimony there was sufficient
evidence in the record to establish the existence of that duty. To establish that
Dr. Huddleston knew or should have known of the risk to be disclosed in this case, the
plaintiffs rely upon a statement that Dr. Huddleston himself made during a deposition:
He acknowledged that before he performed Mr. Stowell's procedure he had "heard"
that an "association" between prolonged prone spine surgery and blindness had been
reported in some "literature." They point, as well, to Dr. Leavitt's statement in her
clinical notes that "anesthesiologists, orthopedists, surgeons and ophthalmologists
around the country [were] very aware" of PION at the time of Mr. Stowell's
diagnosis"; they argue that Dr. Leavitt's statement is an admission by Mayo
establishing the same, see Fed. R. Evid. 801(d)(2)(D).
We doubt that either of those statements establishes that Dr. Huddleston knew
or should have known of the risk in this case. But even if they did, the plaintiffs
cannot make out a prima facie case without establishing that the risk was one that
Dr. Huddleston had a duty to disclose, see Benson, 527 N.W.2d at 561, and they need
expert testimony to do that.
In reaching a similar conclusion, the district court held that the plaintiffs had
failed to introduce any expert testimony to prove that "a skilled practitioner of good
standing would have revealed the risk" of PION-induced permanent blindness to a
patient like Mr. Stowell under similar circumstances, which, as we have said, is one
way in which a plaintiff may show a duty to disclose. See id. It also held that the
plaintiffs had failed to offer the expert testimony necessary to establish "the gravity
of [that] risk and the likelihood of its occurrence," in order to prove that Mr. Stowell's
spinal surgery involved "a risk of death or serious bodily harm which was a significant
probability"; such circumstances, too, require disclosure. See id.; see also Cornfeldt,
262 N.W.2d at 702. (Though we think that permanent blindness may well present an
exception to the statement in Cornfeldt that expert testimony is necessary to establish
a risk's "gravity," id., we agree with the district court that a layperson cannot

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determine the likelihood of the risk in this case without the assistance of a qualified
expert.)
The plaintiffs argue that the court erred because it failed to consider what they
term the "third prong" of the duty-to-disclose standard. The part of the Minnesota
duty-to-disclose standard to which the plaintiffs refer here involves the category of
risks that, although "not generally considered serious enough to require discussion,"
must be disclosed because a patient "attaches a particular significance" to them.
Benson, 527 N.W.2d at 561; see Kinikin, 305 N.W.2d at 595. The Minnesota courts,
when determining whether a risk falls within that category, have looked, at least
sometimes, to objective considerations, by asking whether "a reasonable person in
what the physician knows or should have known to be the plaintiff's position would
consider significant when contemplating surgery." Id. But we don't discern anything
in the record indicating that Mr. Stowell's circumstances were such that a reasonable
person in his position would attach a "particular significance" to the risk of blindness
that prolonged prone spine surgery presented.
Furthermore, to the extent that the Minnesota Supreme Court has suggested in
its cases that a duty to disclose may also arise under this category based on the
idiosyncratic, subjective concerns of a patient, there is nothing in the record to indicate
that Mr. Stowell harbored any " 'peculiar or unfounded' " concerns about losing his
vision, see Benson, 527 N.W.2d at 561 (quoting Kinikin, 305 N.W.2d at 595), or that
Dr. Huddleston knew or should have known that he did. Mr. Stowell never
questioned Dr. Huddleston about whether his surgery might cause blindness, nor did
he express any anxiety or fear that such a result might occur. Even when
Dr. Huddleston warned Mr. Stowell that a risk of stroke accompanied his procedure
and that it could lead to a variety of problems with brain functioning, including
changes in vision, Mr. Stowell never expressed any anxiety about that risk or
indicated that he attached any "particular significance" to it.

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In sum, there was nothing that Dr. Huddleston knew or should have known
about Mr. Stowell to indicate that either a reasonable person in Mr. Stowell's position
or Mr. Stowell himself would have a greater concern about the risk that he faced than
an ordinary person would. We therefore conclude that the district court did not err
when it failed to conclude that Dr. Huddleston had a duty to disclose the risk of
PION-induced permanent blindness on that basis.
III.
Because the district court did not err in determining that the plaintiffs failed to
satisfy Minn. Stat. § 145.682, we affirm its order granting summary judgment to the
defendants.
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