Mark Cheatwood Plaintiff - Appellant Caryl Cheatwood v. Baptist Health, formerly known as Sparks Regional Medical Center

United States Court of Appeals
For the Eighth Circuit
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No. 22-3365
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Mark Cheatwood
Plaintiff - Appellant
Caryl Cheatwood
Plaintiff
v.
Baptist Health, formerly known as Sparks Regional Medical Center
Defendant
Dr. Daniel Mwanza; Dr. Michelle Horan
Defendants - Appellees
Unknown Medical Doctors, 1-10; Unknown Hospital Staff, 1-10; Community
Health Systems, Inc.
Defendants
Fort Smith HMA, LLC
Defendant - Appellee
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Appeal from United States District Court
for the Western District of Arkansas - Fort Smith
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Submitted: September 20, 2023
Filed: February 8, 2024
[Unpublished]
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Before SMITH, Chief Judge, MELLOY and ERICKSON, Circuit Judges.
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PER CURIAM.
Mark Cheatwood appeals the district court’s1 denial of his motion for a
mistrial, and its denial of his motion to set aside the judgment and order a new trial
under Federal Rules of Civil Procedure 59 and 60. For the reasons explained below,
we affirm.
I. Background
In July 2017, Cheatwood operated a boom truck as part of his employment
with the City of Fort Smith, Arkansas. The truck was equipped with outriggers that
extended to stabilize it while the boom was in use. At the time of Cheatwood’s
accident, the truck’s position prevented him from fully extending the outriggers. As
a result, while Cheatwood was using the truck to lower a heavy pump into a creek,
the truck tipped over, tossing him into the inlet. He fell approximately 30 feet,
suffering multiple injuries to his ankles, wrist, and spine.
An ambulance transported Cheatwood to the Sparks Regional Medical Center
(Sparks) emergency room located in Fort Smith, Arkansas. While at Sparks, Dr.
Arthur Johnson, a neurosurgeon, prioritized treatment of Cheatwood’s spinal injury
over his ankle. But because the hospital lacked the necessary medical resources to
treat both of Cheatwood’s injuries, Sparks transferred him to the University of
Arkansas for Medical Sciences Medical Center (UAMS) in Little Rock, Arkansas.
After his arrival, UAMS’s medical staff prioritized Cheatwood’s ankle over his
1 The Honorable P.K. Holmes, III, United States District Judge for the Western
District of Arkansas.

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spinal injury due to the deteriorating condition of his leg because of an infection. He
underwent multiple procedures that culminated in a below-the-knee amputation of
his left leg. He subsequently sued Sparks for the loss of his leg. Cheatwood contends
that had Sparks initially prioritized his ankle, as UAMS did, the amputation would
have been obviated.
Cheatwood sued Sparks and multiple hospital staff in July 2019. Following
discovery, the case proceeded to trial. Cheatwood called Dr. Johnson as a witness.
After cross-examination by the defense, Cheatwood’s counsel redirected Dr.
Johnson. The district court interposed a comment on Dr. Johnson’s testimony during
Cheatwood’s redirect. Cheatwood believed the court’s comment was prejudicial and
moved for a mistrial.2 The district court denied his motion.
Ultimately, the jury found for the defendants, and the district court entered
judgment on October 7, 2022. On November 7, 2022, Cheatwood filed both his
motion to set aside the judgment and order a new trial under Rules 59 and 60 and a
notice of appeal. The district court denied his motion, and he amended his notice of
appeal to include review of the court’s denial.
We have jurisdiction under 28 U.S.C. § 1291.
II. Discussion
A. Mistrial Motion
We review a district court’s denial of a motion for a mistrial for abuse of
discretion. Warger v. Shauers, 721 F.3d 606, 609 (8th Cir. 2013). A district court
“has the right to fairly comment upon the evidence.” United States v. Carter, 528
2 Cheatwood also moved for a mistrial because the district court denied his
request to call a witness to clarify how much he received in workers’ compensation
since the accident. Because Cheatwood’s brief does not sufficiently discuss the
denial of that mistrial motion, the issue is waived, and we will not address it. Beadle
v. City of Omaha, 983 F.3d 1073, 1075 (8th Cir. 2020) (citing Meyers v. Starke, 420
F.3d 738, 743 (8th Cir. 2005)).

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F.2d 844, 851 (8th Cir. 1975). A “limitation on this discretion is that the comments
must not preclude a fair evaluation of the evidence by the jury.” Warren v. State
Farm Fire & Cas. Co., 531 F.3d 693, 701 (8th Cir. 2008) (internal quotation marks
omitted). “[T]his court must . . . also conclude that such activities prejudiced [a
party] before a new trial may be ordered. . . .” Carter, 528 F.2d at 851.
We conclude that the district court did not abuse its discretion when
commenting on the evidence. During his direct examination, Dr. Johnson testified
that Sparks and UAMS had different capabilities. Specifically, he said that Sparks
“couldn’t deal with both” Cheatwood’s ankle and spinal injuries. R. Doc. 241, at
260. Given the resources at Sparks, Dr. Johnson prioritized Cheatwood’s spine over
his ankle because “if you do the orthopedic surgery without doing the spine surgery,
you . . . run the risk of shearing off . . . nerve roots because of . . . bone fragments
that are inside the spinal canal.” Id. at 254. Given the limited resources at Sparks and
“based on the fact that both areas . . . needed to be dealt with,” the hospital
transferred Cheatwood to UAMS. Id. at 260.
The district court’s comment came during Cheatwood’s redirect of Dr.
Johnson. While Dr. Johnson was explaining that “different facilities have different
capabilities” in response to Cheatwood’s question about why he prioritized the
spinal injury over the ankle, the court interjected and said, “The witness testified that
UAMS had the stabilization components that Sparks Hospital did not.” R. Doc. 241,
at 262.
The district court’s comment that Dr. Johnson “testified that UAMS had the
stabilization components that Sparks Hospital did not” is a fair comment upon the
evidence. Id. Although Dr. Johnson did not use this exact phrasing in his testimony,
the record shows that the court’s comment was no more than a clarifying summary
of an undisputed portion of the doctor’s testimony. Dr. Johnson stated that some
facilities have more stabilization capabilities than Sparks, including special
operating tables that help stabilize the patient’s spine. Although Dr. Johnson did not
specifically say that UAMS had those stabilization capabilities, he did testify that

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“[a]t UAMS, they actually had all the specialists that they needed” and “all of the
components they needed” to treat both of Cheatwood’s injuries and deal with any
complications arising from his treatment plan. Id. at 240. On this record, the district
court’s clarifying comment was not an abuse of discretion.
These facts fall short of cases where we found reversible error based on a
court’s comment during trial. See, e.g., Rush v. Smith, 56 F.3d 918, 923 (8th Cir.
1995) (reversing the denial of a new trial because the trial judge’s comment was “an
inadvertent and indirect suggestion that [the plaintiff] and his corroborating
witnesses gave a consistent account of the events because of racial solidarity, and
not because of their sworn duty to tell the truth.”); Champeau v. Fruehauf Corp.,
814 F.2d 1271, 1275–77 (8th Cir. 1987) (holding there was prejudice when the court
interfered with expert testimony 145 times); cf. Russell v. Anderson, 966 F.3d 711,
722–24 (8th Cir. 2020) (explaining that a court’s “comment[] on causation only three
times” did not plainly destroy the overall fairness of the trial); Van Leirsburg v. Sioux
Valley Hosp., 831 F.2d 169, 172–73 (8th Cir. 1987) (noting as “problematic” a
court’s comment that a hospital’s practice of not keeping certain medical records
was “strange,” but that “a few improper comments do not automatically necessitate
a reversal”).
Thus, the district court did not abuse its discretion in making the comment,
and we affirm the district court’s denial of Cheatwood’s motion for a mistrial.
B. Motion for Vacatur and a New Trial
Cheatwood sought vacatur of the district court’s judgment based on Rules 59
and 60. The district court correctly denied Cheatwood’s motion under both Rules.
As to Rule 59, Cheatwood argues that the district court denied him a fair trial
because it misled and unduly influenced the jury, it was argumentative and acted as
an advocate, and a new trial is required under the “totality of the charge.” Appellant’s
Br. at 33. Inquiry into these arguments’ merits, however, is foreclosed because
Cheatwood’s Rule 59 motion was untimely. “A court must not extend the time to act

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under Rule[] . . . 59(b) . . . .” Fed. R. Civ. P. 6(b)(2). Rule 59(b) states, “A motion
for a new trial must be filed no later than 28 days after the entry of judgment.” The
district court entered final judgment in Cheatwood’s case on October 7, 2022.
Cheatwood filed his motion for a new trial on November 7, 2022—31 days later.
Therefore, the district court properly denied Cheatwood’s motion for a new trial
under Rule 59.
Cheatwood’s Rule 60 motion does not suffer the same flaw. See Fed. R. Civ.
P. 60(c)(1) (permitting a motion under Rule 60 if it is “made within a reasonable
time”). Rule 60 permits additional grounds for relief from a judgment. For example,
a movant may seek relief from a final judgment based on “mistake, inadvertence,
surprise, or excusable neglect”; “newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for a new trial under Rule
59(b)”; fraud; issues with the judgment itself; or other reasons that may justify relief.
Id. at 60(b)(1)–(6).
Cheatwood argues that the district court violated Rule 60 because it
improperly intervened in the trial. To support his argument, he likens his case to two
others where we found reversable error, United States v. Van Dyke, 14 F.3d 415 (8th
Cir. 1994), and United States v. Singer, 710 F.2d 431 (8th Cir. 1983) (en banc).
Because the appellants in those cases did not seek relief based on Rule 60, and the
facts are different from Cheatwood’s case, these cases offer no support for
Cheatwood’s appeal.
In Van Dyke, we held that the district court committed several prejudicial
errors. There, the district judge “not only got into matters that should have been left
to the prosecutor on cross-examination; he also essentially ‘took over’ on behalf of
the prosecutor—very possibly giving the jury an impression that he and the
prosecutor were working toward a common goal.” Van Dyke, 14 F.3d at 419. The
district court also refused to admit exculpatory evidence and rejected an expert
witness’s opinion. Id. at 420–22. Those intrusions, “considered as a whole,”
prejudiced the defendant’s right to a fair and impartial trial. Id. at 424.

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The facts here are wholly dissimilar. The district court’s comment merely and
accurately summarized Dr. Johnson’s testimony. Moreover, nothing in the record
shows the district court intruding into matters properly left for defense counsel.
Therefore, Van Dyke is distinguishable and does not support Cheatwood’s case.
Singer involved even more judicial intrusion than Van Dyke. There, the
district court nearly assumed the role of the government’s co-counsel, stating—
perhaps tongue in cheek—that it was not going to try the case for the government,
“like [it had] been doing up to this time.” Singer, 710 F.2d at 433 (emphasis omitted)
(internal quotation marks omitted). The court also helped the government make its
objections and question witnesses. For example, when the government was
questioning a witness, the district court interjected, “Lay a little more foundation
than that.” Id. The court’s actions in Singer lacked fairness. Id. at 437.
This case is not like Singer. A district court can interject “in order to expedite
the presentation of the evidence.” Harris v. Steelweld Equip. Co., 869 F.2d 396, 403
(8th Cir. 1989). Here, the record reflects that the district court sought such
expedition. Throughout the trial, counsel for both sides and the court indicated an
awareness of the trial’s pace. For example, the trial transcripts contain quotes such
as the following: “I’m trying to speed things up” (Cheatwood’ counsel), R. Doc.
241, at 232; “[l]et’s kind of speed this up a little bit” (district court), R. Doc. 243, at
18; and “trying to speed this along, I think it’s gone on a little bit longer than any of
us have anticipated” (defense counsel), R. Doc. 243, at 29. All parties and the court
were mindful of the trial’s pace. The court admonished Cheatwood’s counsel to keep
the case flowing since it had proceeded poorly.
For similar reasons, Cheatwood’s argument that the district court abused its
discretion by prohibiting testimony solely to control time is unsuccessful. We have
held that district courts can “impose reasonable time limits on the presentation of
evidence to prevent undue delay, waste of time, or needless presentation of
cumulative evidence.” Harris v. Chand, 506 F.3d 1135, 1141 (8th Cir. 2007)

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(internal quotation marks omitted). Cheatwood argues that the court restricted his
examinations to control time but placed no similar restrictions on opposing counsel.
In Harris, we denied a similar argument because “Harris . . . failed to show that the
limits affected a substantial right.” Id. at 1143. Cheatwood does not explain how the
court’s efficiency measures affected a substantial right. And he failed to proffer
evidence that the district court’s handling of the case affected the jury’s decision. On
this record, we conclude that the district court did not abuse its discretion in limiting
examination time.
III. Conclusion
Accordingly, we affirm the district court’s judgment.
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