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This
appeal seeks to
test the
constitutionality
Ann.
2851-2859
tit. 24,
mechanics
of
its
appropriateness of
(West 1990)
application
sundry
in
(the Health
diversity
evidentiary rulings
suits,
Act), the
and
the
made during
the
Background
__________
On or
week
of
about April 9,
pregnancy,
1987, while in
plaintiff-appellant
her thirty-first
Dawn
Daigle,
New
Hospital, Rochester,
obstetrician
section.
New Hampshire.
Frisbie Memorial
There, Daigle's
treating
Frisbie Memorial
Hospital
maintained
only
that
her
doctor's suggestion,
April 10,
diagnosis
surgery.
was
being
pressure
1987.
personnel
confirmed her
obstetrician's
prepared
for
her
into
the
provide access
presented
Examination
and hospital
Daigle
jugular vein
to
medications,
immediate
while a catheter
to
monitor
blood
Daigle's carotid
in Daigle's neck,
delivery was
otherwise
successful, the
attending physicians
were forced
to
to the
effort to
litigation,
stem the
weed out
nonmeritorious
settlement of meritorious
24,
2851(1)(A)
proliferation of medical
claims.
claims, and
Health Act
malpractice
promote early
Sullivan v. Johnson,
________
_______
628 A.2d
requires parties
24,
is composed of a
2853.
one or two
Ann. tit.
person with
health care
professionals, depending
See id.
___ ___
on the
2852(2).
hearings and
render a decision.
See id.
___ ___
2854-2855.
A party
her
court
case
deliberations.
(the
regardless
See id.
___ ___
Findings)
are
litigation if they
Findings
are to
of
2858.
admissible
are unanimous.
be
the
outcome
Withal, the
as
evidence
See id.
___ ___
introduced "without
of
the
panel
panel's findings
in
subsequent
Id.
___
2857(1)(B).
III.
III.
____
Proceedings Below
Proceedings Below
_________________
On June 28,
District
Court for
District of
to
New
Hampshire.
1332 (1988),
treatment rendered
Invoking
she alleged
during her
hospital
stay.
failing
in
its
jurisdictional
objection,
defended
on
the
merits.1
Under
the compulsion of
presented
her
consisted
After
evidentiary
an
negligence
case
to a
that ruling,
prelitigation
hearing,
panel which
the
attributable either to
screening
Daigle first
panel
MMC or to
found
no
acts
of
Daigle's attending
____________________
the panel's
adverse decision,
Daigle
noting the
panel's unanimity,
evidence.
allowed the
Thereafter,
proceedings,
objections.
but
Daigle attempted
to
no
The jury
Findings to
avail;
the
be introduced
into
impeach the
panel
sustained
MMC's
to
court
10, 1993.
Daigle moved
appealed.
then
1291 (1988).
IV.
IV.
___
Discussion
Discussion
__________
A.
A.
__
The Constitutional Challenges
The Constitutional Challenges
_____________________________
Appellant's
challenges
asserts,
to
main
offensive
the constitutionality
inter alia,
_____ ____
that the
comprises
of
statute
the Health
host
Act.
of
She
violates principles
of
trial by jury.
Despite
these
of the matter
claims
constitutionality of the
or
is that
otherwise
appellant failed
to
challenge
the
court.
raise on
Our
law is
clear that
issues
____________________
a party
to
appeal
2Although Daigle did not sue either Dr. Taylor or Dr. Bryce
in the federal court, she later sued them in a Maine state court.
That suit is still pending.
5
below.
cases).
The
to constitutional challenges.
See
___
Cohen v.
_____
with full
President &
___________
Cir.), cert.
_____
be sure,
inelastic; there
the exceptions
We will,
Cir.),
are exceptions to
relax the
United States
_____________
cert.
_____
rule
denied,
______
484
844
most part,
a showing
F.2d 97,
(1987),
totally
sparingly dispensed.
rule upon
v. Griffin, 818
_______
U.S.
is not
for example,
error, see
___
the raise-or-waive
but
of plain
99-100 (1st
appellant's
treatment.
"Plain
necessary to prevent
see id. at
___ ___
100, and the "errors" assigned here are, in all events, likely to
prove a losing
proposition.3
"exceptional case,"
We can
in an
____________________
to
ensure an
appellant's success.
hold,
therefore, that
F.2d at 31.
appellant's
constitutional
B.
B.
__
The Section 2857 Challenge
The Section 2857 Challenge
__________________________
Next,
reasons
aimed
evidentiary
appellant
at
showing
grounds, in
launches
a barrage
of
why the
district
court
admitting the
interrelated
erred,
Findings into
on
evidence.
First,
effect
Act, which
to the Health
decisions, i.e.,
____
Findings, may be
2857.
provides that
unanimous panel
explanation."
Me.
at an
tit.
permitting counsel
to comment
upon the
____________________
Findings
in
prerogative
opening
statements
and
closing
arguments
(a
would sooner
arguing
that
is whistling
this
past
protocol
constitutes
the graveyard.
error,
Her position
is
(Me. 1993),
a case in
which Maine's
655-56.
in precisely the
these claims."
Supreme Judicial
manner
elected
pre-trial resolution of
Proceeding in this
fashion, the
of .
held that
panel unanimously
of trial," the
Id. at 656.
___
"it is
[that the
. . claims
deliberations or
statutory
[parties] to
specifically
utilize [in
in diversity jurisdiction
Id.
___
and
absolutely bound
See Commissioner
___ ____________
464-65 (1967).
So
it
is here.
Sullivan
________
categorically
Appellant also
contends that
court erred, as
a matter of federal
theory appears
to be
evidentiary law,
foreclosing
recondite, appellant's
is a
state evidentiary
rule and, as such, must give way to the Federal Rules of Evidence
in a diversity
suit.
federal Evidence
see
___
v. Tompkins,
________
federal courts);
304 U.S.
64, 78
(1938).
evidence,
the evidence.
if the
she had
And, moreover,
appellant
under Fed.
R. Evid.
admitted
806, to
with
her premise that the Health Act's evidentiary strictures are mere
procedural
rules.
Authoritative
case
law
makes
clear
that
apply
sufficiently
court.
broad
to
See Walker
___ ______
v.
particular
lieu of
civil action
court.
before the
446 U.S.
which
Fed. R. Civ.
could be commenced
required actual
P. 3,
740, 749
In
Armco
_____
service
which provided
by filing a complaint
issue
tolling statute,
process, in
rules are
of
of
that a
with the
of limitations
On this basis,
that
state,"
"statement of a substantive
forming an
policies served by
"'integral'
part
of
The evidentiary
the several
Id. at 751-52.
___
decision
side" with
intended sphere of
Id. at 752.
___
provisions of Maine's
Health Act
are
this
inexpensive
instance,
the
resolution
state's
of
medical
choice
to
encourage
malpractice
claims.
early,
As
observed by
unanimous
Maine's highest
Findings be
court in
admitted
Sullivan, directing
________
"without explanation,"
that
thereby
the
federal
impeachment do
Evidence
not seek to
governing
hearsay
final dispositions
and
policy of
and the
within its
effect to
we see
the Health
disserve Erie
____
principles by
discouraging
forum
no conflict.
Act's
refusal to
evidentiary provisions
undercutting Erie's
____
shopping
Indeed, a
and
eliminating
would
twin goals
of
inequitable
courts.6
See Hanna, 380 U.S. at 468; see also Armco Steel, 446 U.S. at 751
___ _____
___ ____ ___________
(explaining
that
jurisdiction
ordinarily
federal
court
should
give
sitting
effect
in
to
diversity
the
state's
"substantive decision[s]").
3.
3.
Form of Presentation.
Form of Presentation.
_____________________
to the Findings
that
Appellant's
last objection
of the proffer.
She avers
in allowing
____________________
6We
note in
passing
the
Findings,
exhibits.7
basis for
in
written
form,
Although appellant
the objection,
to
be
introduced
as
full
her central
point is apparently
that
eliciting
Evid. 403.8
under
Rule
403
possess wide
between
latitude
the
and
in striking
probative
force
See Onujiogu v.
___ ________
and
United
______
"Only
will
value and
unfair effect."
Freeman v.
_______
Package Mach.
_____________
The test
of
is abuse of
The
district
court,
recognizing
the
highly
evidence's
____________________
7The panel made separate written Findings as to MMC,
Taylor, and Dr. Bryce. MMC proffered all three documents.
8Fed. R. Evid. 403 provides in pertinent part:
Although relevant,
evidence may
be
excluded
if
its
probative
value
is
substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of
undue delay, waste of time, or needless
presentation of cumulative evidence.
12
Dr.
capacity
for
prejudice,
handled
it
proffered exhibits
by removing the
an
appropriate
instruction
and to
cautionary
does not
outside the
writing
evidence rule.
to
state
the
jury
an
And, because
See Fed. R.
___
appropriate
tribute
legal effect
pays
the
paper on which
authenticated
of the
Moreover,
now assign
redacting
official seal
instruction
to which appellant
which she
gingerly,
to
a duly
the
best
Inc. v. Visual Scene, Inc., 726 F.2d 36, 38 (1st Cir. 1984).
____
__________________
On
a related topic,
that the
the Findings
that concerned
Dr. Taylor
that
this ruling
discretion.
Inasmuch as
theories of vicarious
two physicians
making the
proceedings.
constituted
an
abuse
of the
MMC's agents
disputed evidence
We do not
court's
MMC included
and omissions of
the
to the
federal
We
be
prejudicial; elsewise,
offer
it.
It is
the proponent
would
necessary corollary
be unlikely
of this
to
conventional
it hurts
See Freeman,
___ _______
a party's
chances.
865
F.2d at
1339;
13
Onujiogu,
________
exclude
817 F.2d at
6.
evidence under
prejudice.
The
Rule
not prejudice,
a need to
but unfair
______
C.
C.
__
The Deposition
The Deposition
______________
Appellant's
directed
against
the
final
foray
is
district court's
two-pronged
ruling
assault
permitting
Dr.
Bryce's
deposition testimony
to
be
placed
before
the
jury.
These
Unavailability.
Unavailability.
______________
The
Civil
"[t]he deposition of a
for any purpose if
trial or hearing."
general, the
district court
Fed. R.
provide
witness . . .
in
may be
Rules
. the
Civ. P. 32(a)(3)(B).
has discretion
in matters of
In
case
(1st Cir.
Litig., 859
______
same deference
attaches to
See Oostendorp
___ __________
v. Khanna,
______
(1st Cir.
1988), and we
14
think the
under Rule
1179 (7th
32.
Cir. 1991)
(holding
within
that "the
the sound
decision to
discretion
admit
of
deposition testimony
the
district
court"),
is
cert.
_____
denied, 112 S. Ct. 951 (1992); Reeg v. Shaughnessy, 570 F.2d 309,
______
____
___________
317 (10th Cir. 1978) (similar).
the
trial, absent a
clear
has
resort
to
Dr. Bryce's
not
the
made
such
deposition,
statement, made
showing.
the
Before
district
during his
court
deposition,
a letter
in which
he indicated he would
order
dispute
to testify.
that
border.
Appellant did
Dr. Bryce
Wisconsin is more
This
be unable to leave
had
not then,
nor does
relocated, and
she
Wisconsin in
she now,
concedes that
rejoinder
is
twofold.
Initially,
she
see no reason
to read such a
ordinary circumstances, a
accept,
and
act upon,
explanation of
Under
power to
a deponent's
15
whereabouts
without convening
an
evidentiary
hearing.9
deponent's uncontradicted
that he
noting,
inter
_____
alia, that
____
See
___
deponent
had no
solely upon
before trial,
the courthouse;
apparent
reason to
of
efforts, he might
of the rule
qualification
criterion:
hundred
so long as
miles from
upon
unavailable.10
it.
a court to
Distance
a witness is shown
the
place of
be persuaded to attend.
showing
See
___
Carey
_____
trial,
is
read this
the
decisive
to be more
than one
the admissibility
the
But
witness
is
of
is not
otherwise
relies heavily
2.
2.
Completeness.
Completeness.
____________
Appellant's last
line of
fire is
broad
to the merits
discretionary
powers
of this assertion, we
to
manage
cases,
note that
which
are
necessarily enjoyed by
the regulation
of discovery disputes.
to
complete.
at 1019.
determining
Moreover,
whether
deposition
even if it is determined
is
reasonably
that a deposition
is not complete,
the
into
if
testimony
evidence
admissibility have
Lentomyynti Oy v.
_______________
Medivac, Inc.,
_____________
1993);
see also
___ ____
Fed.
customary
part of
standards
if no unfairness inheres.
R. Evid.
997 F.2d
611
364, 371
(recognizing the
of
See
___
(7th Cir.
district
R. Civ.
P. 32(a) (providing
for use
of "any
evidence"
and
directing
the
district
court
to
consider
testimony is to be
admitted).
Dr.
We think
Appellant
such a finding
on November
29, 1989.
1990.
MMC
A fair
deposition because
they
did
not
perceive
that
fruitful
first place,
deposition to
place,
the
district
court
carefully
redacted
the
In the second
In
and
resume the
three years
memoranda
and
contexts that a
deposition
that intervened
the start
of
trial.
at some
between
We
point
upon her to
during the
production of
have held
in various
perceptible
and may
See, e.g.,
____ ____
the
61 (1st
our usual
advisor).
We see no
practice of denying
18
Affirmed.
Affirmed.
________
Costs to appellee.
Costs to appellee.
_________________
reason to deviate
relief to
parties who
____________________