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Berroyer v. Hertz

decided: March 5, 1982.



Before Hunter, Van Dusen and Sloviter, Circuit Judges.

Author: Van Dusen


This is an appeal from a final judgment of the District Court of the Virgin Islands entered upon a jury verdict in favor of the plaintiff on her malpractice claim against the defendant dentist. The defendant alleges that the district court committed reversible error in (1) receiving the testimony of a plaintiff's witness whose name had not been included in the pretrial order or disclosed during discovery; (2) permitting that witness to be called as a "rebuttal witness" during the plaintiff's case in chief; and (3) submitting the question of punitive damages to the jury. This court has jurisdiction under 28 U.S.C. ยง 1291 (1976).

After a careful consideration of the contentions raised by the defendant and upon examination of the entire record, we conclude that the record does not support the award of punitive damages. Consequently, we will reverse so much of the judgment as awards punitive damages to the plaintiff, vacate the award of attorney's fees, and remand the case to the district court with instructions to enter judgment in favor of the defendant on the plaintiff's claim for punitive damages and to reconsider the attorney's fees award in light of this opinion. In all other respects, the judgment of the district court will be affirmed.


The plaintiff, Patricia Berroyer, visited the defendant, Dr. Sidney Hertz, for treatment of an impacted wisdom tooth. During this consultation, Hertz advised Berroyer that the tooth should be removed, in part because there was a possibility that it could lead to cancer of the jaw. Berroyer consented to the procedure and Hertz removed the tooth. Berroyer thereafter developed an infection in the area of the extraction and returned to Hertz's office on six or seven occasions for treatment. Subsequently, Berroyer consulted another dentist and then instituted this suit, claiming compensatory damages based upon Hertz's negligence and punitive damages based upon his contended outrageous conduct in inducing her to undergo the procedure with his allegedly fraudulent prediction that cancer could otherwise develop. The claimed grounds for punitive damages were later expanded to include Hertz's alleged "abandonment" of the plaintiff when he refused to see her on her final post-operative visit.*fn1

At trial, the plaintiff's theory, which she sought to prove through expert testimony, was that the defendant's treatment of her, both pre-operative and post-operative, was negligent and that his cancer warning constituted intentional fraud which vitiated her consent and rendered the extraction a common law battery. The substance of the plaintiff's testimony was that the defendant told her that her impacted wisdom tooth, which was at that time "asymptomatic" or not presently troublesome, "ha(d) to come out.... Because if it doesn't come out, there is a 9 percent chance you will get cancer of the jaw." N.T. at 65. She further testified that she consented to the procedure in reliance upon the defendant's statement out of her "horror" of cancer of the jaw. After describing the surgery and the defendant's treatment of her various post-operative problems, she concluded by stating that on her final visit to Dr. Hertz she arrived without an appointment and discussed her concerns with the nurse, who relayed them to the defendant and returned with his answers. She further stated that she never made an explicit request to see the doctor personally because she "thought he would see me if he thought something was really wrong." N.T. at 82-84.*fn2 The plaintiff never returned to the defendant after this visit and sometime thereafter consulted another dentist. The plaintiff's experts then testified to their opinions concerning Dr. Hertz's treatment of the plaintiff. The only aspect of that testimony that is of concern here is the fairly consistent view held by these witnesses that the chance of cancer developing from an impacted wisdom tooth was certainly not 9% and was in fact so remote that warning a patient about it is a deviation from the standard of dental care practiced in the Virgin Islands. See N.T. at 205-10.

During the course of the plaintiff's case, the defendant sought permission to call his expert witness, Dr. Shira, out of turn in order to accommodate the witness's travel schedule. The plaintiff did not object and Dr. Shira testified that, in his opinion, the failure to remove an impacted wisdom tooth can cause cysts to form in the jaw, which cysts may, in a limited number of cases, become cancerous. He went on to say that he had presented a paper on this topic at a dental seminar on St. Thomas in which he suggested this possibility as just another of many reasons why wisdom teeth should be removed. Dr. Shira further testified that, in his opinion, Dr. Hertz had acted reasonably both in his advice and post-operative treatment of the plaintiff. He based the latter opinion on his belief that Dr. Hertz had prescribed "Wygesic," a very mild analgesic pain medication, which indicated that the plaintiff's infection could not possibly have been as serious as she claimed.

Following Dr. Shira's testimony, the plaintiff sought permission to call Elliot Thomas, the pharmacist who filled her prescriptions, in "rebuttal" to Dr. Shira's testimony. The defendant objected on the ground that Mr. Thomas' name had not been on the pretrial order witness list*fn3 and that it was improper to permit rebuttal testimony before the close of defendant's case. The plaintiff responded that Mr. Thomas had his own travel problems, that his testimony would be in direct rebuttal to Dr. Shira's, and that permitting his testimony could cause no prejudice to the defendant. The court overruled the objection and Mr. Thomas testified that the plaintiff had never presented him with a prescription for "Wygesic," but rather had, on the prescription of the defendant, purchased "Percodan," a strong pain killer. The plaintiff's expert witnesses had already testified that "Percodan" merely masks severe pain and does nothing to treat the cause. This testimony was the basis for the plaintiff's argument that the defendant knew of the severity of her pain and infection and was negligent in continuing to prescribe a pain killer without treating the underlying cause of the pain.

The defendant testified that he had attended Dr. Shira's presentation on St. Thomas and, based upon that, informed the plaintiff that one of several reasons to have an impacted wisdom tooth removed was the possibility of cancer. He denied telling her that there was a 9% chance of cancer but, rather, maintained that he had said that there was approximately a 3% chance of a cyst developing and then another 3% chance that, if the cyst developed, it would become cancerous. Thus, he stated that he told Ms. Berroyer that there was roughly a .09% (i.e., .03 X .03 = .0009 = .09%) chance of cancer but that "even if it were one in a million" it would be too much. N.T. at 430-31. He acknowledged that, in hindsight and based on Dr. Shira's testimony, even the .09% figure was too high but insisted that he had always qualified his statement to the plaintiff by saying that any risk of cancer, even "one in a million," was an unnecessary risk to run when removing the tooth was relatively simple.

At the close of the evidence, the court submitted the case to the jury on special interrogatories*fn4 and informed them that they could award both compensatory and punitive damages.

The jury answered "YES" to each interrogatory and awarded the plaintiff $15,000.00 in compensatory and $25,000.00 in punitive damages. Thereafter, the district court denied the defendant's motion for judgment notwithstanding the verdict, granted the plaintiff's motions for costs and attorney's fees,*fn5 and entered judgment in the total amount of $50,620.00 plus interest.


The defendant's first contention is that the district court erred in permitting Mr. Thomas to testify despite the fact that his name was not on the witness list in the pretrial order. The cases make clear that departure from or adherence to the pretrial order is a matter peculiarly within the province of the trial judge, whose decision will not be disturbed on appeal absent a clear abuse of discretion. De Laval Turbine, Inc. v. West India Industries, Inc., 502 F.2d 259, 263 (3d Cir. 1974) (permitting testimony by a non-listed witness). Cf. Franklin Music v. American Broadcasting Companies, 616 F.2d 528, 539-40 (3d Cir. 1979) (upholding trial court's exclusion of non-listed witness as within its discretion); Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894, ...

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