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579 F.2d 1200

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2. Name the trial court. Also name the appellate court.

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5. What are the issues on appeal?

6. Who wrote the opinion?

7. What is the docket number?

8. On what date did the court issue the decision and how did the court rule?

9. Provide the text of Headnote [6] as well as the name of the author referenced in the portion of the text which is summarized by that headnote.

10. Provide the name of the attorney or attorneys who represented the appellants.

this is the case:

579 F.2d 1200

United States Court of Appeals,

Tenth Circuit.

Mary Kathleen LANE, a/k/a Mary K. Lane, and Ross E. Lane, her husband, Plaintiffs-Appellants,

v.

W. S. WALLACE, M. D., Dan B. Holton, M. D., and W. W. Wersich, M. D., Defendants-Appellees.

No. 76-2172.

July 5, 1978.

Synopsis

Patient sued three doctors for medical malpractice. The United States District Court for the District of Colorado, Fred M. Winner, Chief Judge, rendered judgment for the doctors and patient appealed. The Court of Appeals, Breitenstein, Circuit Judge, held that: (1) the trial court did not err in denying the patient's request for a continuance to obtain the presence of two medical expert witnesses, and (2) the trial judge was not guilty of such misconduct as to prejudice the patient's case.

Affirmed.

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Attorneys and Law Firms

*1201Jack Dalton, Dodge City, Kan. (Barry K. Gunderson and Mangan, Dalton, Trenkle & Gunderson, Dodge City, Kan, with him on the brief), for plaintiffs-appellants.

Dale S. Carpenter, III, Denver, Colo. (Roger F. Johnson, Johnson & Mahoney, P. C., Denver, Colo., with him on the brief), for appellee, W. W. Wersich, M. D.

Lee R. Wills, Colorado Springs, Colo. (Kane, Donley & Wills, Colorado Springs, Colo., with him on the brief), for appellees, W. S. Wallace, M. D., and Dan B. Holton, M. D.

Before McWILLIAMS, BREITENSTEIN and LOGAN, Circuit Judges.

Opinion

BREITENSTEIN, Circuit Judge.

This is a medical malpractice suit in which the jury returned a verdict for the three doctors, defendants-appellees. Jurisdiction is based on diversity. The plaintiffs-appellants, Mary Kathleen Lane, and her husband, Ross E. Lane, appeal from the judgment dismissing their action. Prime reliance is placed on claims of judicial misconduct. We affirm.

Mrs. Lane and her husband live in Leoti, Kansas. The three doctors practice their profession in Pueblo, Colorado. In October, 1972, radiological tests were performed on Mrs. Lane by defendants Wallace and Horton, each of whom is a radiologist. The tests showed a suspicious radiolucency or lesion on her right renal pelvis. Defendant Wersich, a urologist, was consulted. In December, 1972 additional radiographic and urographic tests were made and, in the opinion of the defendants, indicated the presence of suspicious radiolucency. With the approval of Mrs. Lane, defendant Wersich performed exploratory kidney surgery which disclosed no tumor or malignancy. Some months later a pseudocyst was discovered at the operative site and a doctor,*1202other than the defendants, removed the right kidney.

Mrs. Lane and her husband brought this suit, in the United States District Court for the District of Colorado, claiming that the defendant doctors were negligent in not apprising plaintiffs of the hazards of exploratory surgery and in their diagnosis and surgery. The case was tried before a jury in Pueblo, Colorado. United States District Judge Winner presided at the trial. Plaintiffs presented the testimony of six doctors, three of whom testified in person and three by deposition. The three defendant doctors testified, two in person and one by deposition. Four other doctors testified for the defense. The medical evidence was in sharp disagreement.No good purpose would be served by an analysis of that evidence because the plaintiffs-appellants concede that substantial evidence sustains the verdict. By its verdict the jury accepted the testimony of the defense experts.

1

When the trial began on a Monday, the court announced that it hoped to conclude within the week. A prolonged snow storm hampered travel to the inconvenience of all, particularly out-of-town witnesses. Two of plaintiffs' medical witnesses, Doctors Doak and Brownrigg, lived in Kansas and were prevented from reaching Pueblo by the storm. The court denied plaintiffs' request for a continuance. In the circumstances presented, the denial was a proper exercise of the court's discretion. SeeCommunity National Life Insurance Company v. Parker Square Savings and Loan Association, 10 Cir., 406 F.2d 603, 605.

Defense counsel had taken the deposition of Dr. Doak. The court ordered that, because of the doctor's inability to attend, his deposition be read in place of his testimony. Plaintiffs objected on the ground that the deposition had been taken by the defendants. The deposition sets out in detail Dr. Doak's analysis of the pertinent X-rays and his conclusions as to the defendants' negligence. Plaintiffs have not specified any possible testimony of Dr. Doak which was inadequately covered by the deposition. The court did not abuse its discretion in requiring the use of the deposition in the absence of Dr. Doak.

Dr. Brownrigg, another plaintiffs' witness living in Kansas, was also delayed by the storm. The problem caused considerable colloquy, in the course of which the court commented that other means of transportation were available to Dr. Brownrigg than the private plane which he wished to use. Because of uncertainty as to when Dr. Brownrigg would be available, defense counsel offered to present some of their witnesses out of turn. The court said, without objection by the plaintiffs, that if the witnesses came, they could testify out of turn. On the next day, the fifth of the trial, Dr. Brownrigg was present and began his testimony. Later, two Denver doctors appeared and the court interrupted Dr. Brownrigg's testimony so that the Denver doctors could testify. To avoid confusion, the court explained to the jury its reasons for the interruption of Dr. Brownrigg's testimony. Later Dr. Brownrigg testified in full and at length as to his finding of lack of professional care by the defendants. The interruption did not damage plaintiffs' case. The court acted within its discretion.

2

The main thrust of plaintiffs' argument on this appeal is that they did not have a fair trial because of the misconduct of the trial judge. Counsel from without the District of Colorado tried the case for the plaintiffs and represents them on this appeal. He asserts that mistreatment of him by the court damaged his presentation of his clients' cause. Difficulties between him and the judge began early in the trial. In his opening statement plaintiffs' counsel referred to Mrs. Lane at least 14 times as "Kathy." Mrs. Lane had been married nearly 20 years and had four children. At the conclusion of all opening statements and out of the presence of the jury, the judge said:

"* * * it has been the rule in the United States Supreme (sic.) Court for the District of Colorado at least since 1963, that any witness over the age of 18, you don't use their first name. That gives a very unfair advantage and a very*1203unfair flavor to the case * * * *. I will not make my next suggestion outside the presence of the jury.* * * * if you slip again I am going to correct you in the presence of the jury. And that's unfair to the plaintiff to have me criticize you in the presence of the jury."

Later in the day during the direct examination of Mrs. Lane, the lawyer again called her "Kathy." The judge excused the jury and again admonished the lawyer, saying:

"* * * I have given you my last warning. This will be a grave injustice to your client if I am forced to declare a mistrial, but it is an injustice that will result totally and entirely from your conduct."

Counsel abstained from the use of the first name throughout the remainder of the trial. We approve of the judge's action. First-name familiarity with an adult is not appropriate in the court room. Every witness must be treated with formality and respect. First-name use is sometimes demeaning and patronizing, and at other times favor seeking. Counsel's conduct may not be forgiven because he was out of his bailiwick. Procedural rules which applied to Colorado lawyers also applied to him. The admonitions were proper, were out of the presence of the jury, and could not have affected it. In the five and a half days of trial which followed, counsel diligently presented the plaintiffs' case and in both direct and cross examination of the expert witnesses, thoroughly and carefully tested the validity of their evidence. The occasional criticisms and impatience on the part of both court and counsel were the product of counsel's conduct and the inclement weather. The record discloses no restraint on counsel's proper advocacy of his clients' cause.

3

Other incidents of claimed misconduct need not be discussed in detail. Some related to evidential rulings of little consequence, others to legal arguments, and some to statements regarding counsel's conduct. An expression of the court's views on conduct of counsel, within proper limits, is permissible provided the jury is given to understand that the jury is free to form its own opinion of the facts and apply the law to them. SeeUnion Carbide and Carbon Corporation v. Nisley, 10 Cir., 300 F.2d 561, 586,petition for cert. dismissed371 U.S. 801, 83 S.Ct. 13, 9 L.Ed.2d 46.The jury was instructed that it was the sole judge of the facts and credibility of the witnesses, and that nothing said by the court should be considered as indication of a belief of what the facts are or as to which party should prevail. In its instructions the court did not comment on the evidence.