Steve Williams; Teresa Williams v. Jeremy Baum, M.D.; Nebraska-Iowa Radiology Consultants Inc.

United States Court of Appeals
For the Eighth Circuit
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No. 21-3072
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Steve Williams; Teresa Williams
Plaintiffs - Appellants
v.
Jeremy Baum, M.D.; Nebraska-Iowa Radiology Consultants Inc.
Defendants - Appellees
Michelle Peterson-Jones, M.D.
Defendant
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Appeal from United States District Court
for the Southern District of Iowa - Western
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Submitted: April 13, 2022
Filed: September 1, 2022
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Before LOKEN, KELLY, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
Two doctors missed Steve Williams’s cancer: Dr. Michelle Peterson-Jones in
March 2015, and Dr. Jeremy Baum in January 2018. After another doctor eventually
discovered the cancer, Williams sued both Peterson-Jones and Baum, arguing that

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their negligence reduced his chance of surviving. The jury returned a favorable
verdict for Dr. Baum, and Williams moved for a mistrial based on the district court’s1
evidentiary rulings. The court denied that motion, and we affirm.
I.
In March 2015, Williams went to his family doctor for chest pain. Dr.
Peterson-Jones read Williams’s chest x-rays but didn’t notice any issues. In January
2018, Williams complained of pain in his right shoulder. His doctor recommended
surgery and took a few routine x-rays of Williams’s chest. Dr. Baum examined those
x-rays and also didn’t notice any abnormalities. Six months later, Williams
underwent a biopsy and doctors found a cancerous tumor near his right lung.
Everyone agrees that the tumor was visible on x-rays from 2015 onward and that
both Dr. Peterson-Jones and Dr. Baum failed to diagnose it.
Williams and his wife sued Dr. Baum, Dr. Peterson-Jones, and Nebraska-Iowa
Radiology Consultants, Inc. Williams alleged pain and suffering from the
misdiagnosis and a reduced chance of survival, and his wife brought a loss of
consortium claim. A few days before trial, Williams dismissed Dr. Peterson-Jones
from the suit.
At trial, Dr. Baum focused extensively on Dr. Peterson-Jones—even though
she was no longer a defendant. During opening statements, defense counsel
mentioned that “Dr. Michelle Peterson . . . . did not identify any abnormalities at that
time, but . . . there was a tumor present in that chest X-ray back on March 15th of
2015.” Williams objected, arguing that Dr. Peterson-Jones’s conduct was irrelevant
and prejudicial.2 The district court noted the objection and allowed opening
statements to continue. Dr. Baum continued to focus on Dr. Peterson-Jones
throughout the trial, saying that she reduced Williams’s chance of surviving by 55%.
1 The Honorable Charles R. Wolle, United States District Judge for the
Southern District of Iowa, now retired.
2 Objecting under Federal Rules of Evidence 401, 402, and 403.

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Williams supported his negligence claim with expert testimony by Dr. Myron
Marx, a radiologist. Dr. Marx said that Dr. Baum breached the standard of care by
not spotting the tumor. He also noted that in the six months between Dr. Baum’s
negligence and Williams’s cancer being discovered, the tumor had grown to the
point that Williams “was no longer a candidate for surgical resection.” Since surgery
was not possible, “the only thing that could be offered to him [now] would be
treatment with chemotherapy and radiation.”
Throughout the trial, Dr. Baum questioned witnesses about three medical
papers: Exhibit U, a randomized trial for patients with stage III lung cancer; and
Exhibits S and T, studies on “tri-modality therapy” for Williams’s type of tumor.
Williams objected to these exhibits being referenced, arguing that they were hearsay,
but the district court overruled his objections. At the end of the trial, Dr. Baum
moved to submit the exhibits into evidence. The district court submitted them to the
jury over Williams’s objection.
The jury awarded Williams $27,500 for pain and suffering. But it concluded
that Dr. Baum’s misdiagnosis did not reduce Williams’s chance of surviving, so it
awarded him nothing on his loss of survivorship claim or his wife’s loss of
consortium claim. Williams moved for a new trial, arguing that the district court’s
evidentiary errors prejudiced the jury. The court rejected the motion, concluding
that “the plaintiffs were in no way prejudiced by the medical records and treatises . . .
considered by the jury, nor by [the] references to radiologist Dr. Peterson-Jones.”
Williams appeals.
II.
“We review the denial of a motion for a new trial for a clear abuse of
discretion, with the key question being whether a new trial is necessary to prevent a
miscarriage of justice.” Manning v. Jones, 875 F.3d 408, 410 (8th Cir. 2017)
(citation omitted). This is a “stringent standard,” United States v. Broeker, 27 F.4th

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1331, 1338 (8th Cir. 2022), and “[m]otions for new trials are generally disfavored,”
United States v. Fetters, 698 F.3d 653, 656 (8th Cir. 2012) (citation omitted).
Williams argues that the district court should have granted his motion for a
new trial for three reasons. First, he says that the testimony about Dr. Peterson-
Jones’s diagnosis was irrelevant and prejudicial. Federal Rule of Evidence 401 says
that “[e]vidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of consequence
in determining the action.” Williams concedes that the fact that he had a tumor in
2015 is relevant. After all, if his tumor was already past the point of effective
surgical treatment in 2015, then Dr. Baum’s misdiagnosis wouldn’t have affected
his chance of surviving. Williams appears to suggest, however, that dismissing Dr.
Peterson-Jones from the case without excluding evidence related to her allegedly
negligent actions may have caused the jury to infer that Williams had been made
whole for any compensable harm, dissuading the jury from awarding additional
damages.
Williams next argues that the district court improperly allowed Exhibits S, T,
and U to be referenced at trial. Those exhibits are hearsay, but the district court held
that they fell within an exception under Federal Rule of Evidence 803(18), which
says that “[a] statement contained in a treatise, periodical, or pamphlet [is
admissible] if: (A) the statement is called to the attention of an expert witness on
cross-examination or relied on by the expert on direct examination; and (B) the
publication is established as a reliable authority.” Williams argues Rule 803(18)
doesn’t apply to those exhibits because Dr. Baum failed to establish them as reliable
authorities.
Finally, Williams claims that even if Rule 803(18) applies to Exhibits S, T,
and U, those exhibits still should not have been received by the jury. Federal Rule
of Evidence 803(18) expressly says that if “[s]tatements in [l]earned [t]reatises,
[p]eriodicals, or [p]amphlets” are admitted, “the statement may be read into evidence
but not received as an exhibit.”

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We assume, for the sake of argument, that Dr. Peterson-Jones’s conduct was
irrelevant and that Exhibits S, T, and U should not have been referenced at trial or
received as exhibits. But “[a]bsent error affecting the substantial rights of the parties,
neither reversal nor a new trial is required.” Hoffmeyer v. Porter, 758 F.3d 1065,
1068 (8th Cir. 2014) (citation omitted). In denying the motion for a new trial, the
district court found that the jury wasn’t influenced by the disputed evidence, noting
that “[n]othing about Dr. Peterson-Jones’s involvement as a radiologist impacted the
jury’s ultimate verdict.” It also found that “the plaintiffs have not shown that the
receipt of [Exhibits S, T, and U] was in any way prejudicial.”
We hold that the district court’s finding was not a clear abuse of discretion.
While it is a close call, the record contained enough evidence for a jury to properly
find that Williams failed to meet his burden of proof. For instance, during cross-
examination, Dr. Marx acknowledged that he had previously testified that Williams
had “a large Pancoast tumor in a moderately advanced stage” in 2015—three years
before Dr. Baum’s misdiagnosis. Dr. Marx also testified that Williams’s tumor had
breached his chest wall by 2015, which meant “surgery [was] not likely.”3 From
that, the jury could reasonably conclude that Williams’s chances of surviving were
not affected by Dr. Baum’s misdiagnosis, since his cancer was already past the point
of surgical resection in 2018. The district court, which “is in the best position to
determine the impact evidence will have upon the jury,” United States v. Worley, 88
F.3d 644, 646 (8th Cir. 1996) (citation omitted), did not abuse its discretion in
finding that the jury wasn’t prejudiced by the disputed evidence.
3 To the extent that Williams challenges this line of inquiry, we hold that it was
relevant and admissible. If Williams’s tumor was past the point of effective surgical
treatment in 2015, then Dr. Baum’s 2018 failure to diagnose would have been
harmless. Accordingly, Dr. Marx’s prior statements are relevant to causation and
damages. See, e.g., Phillips v. Covenant Clinic, 625 N.W.2d 714, 718 (Iowa 2001)
(noting that medical malpractice claims require “a causal relationship between the
violation and the harm allegedly suffered by the plaintiff”).

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III.
We affirm.
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