Wilder v. Eberhar

977 F.2d 673 (1st Cir. 1992).

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Nature of the Case

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Facts

P was being treated for obesity by D. D determined that P was a candidate for a vertical banded gastroplasty ('VBG') or vertical stapling of the stomach. D performed a stomach staple on P, and P suffered serious complications from tears in her lower esophagus. D fixed the tear during the operation, but there was still leakage at the lower esophagus. D operated again and found two tears and decided to operate again when an X-Ray revealed that the tears were not healing properly. During the operation, it was discovered that the lower esophagus and upper stomach were no longer viable. D removed that dead tissue and sewed the upper side of the stomach closed. The remainder of the stomach was reconnected to the esophagus. P remained hospitalized for 101 days. P sued D for malpractice. P's expert testified that D's surgery was the sole cause of P's injuries. D offered expert testimony, but it was excluded because the opinions could not be expressed in terms of probability rather than a mere possibility. D’s experts were prepared to testify that other 'possible' causes of the esophageal injury existed. D sought to exclude any opinion testimony by Ds' experts that could not be expressed in terms of 'probability' as distinguished from 'mere possibility.' The trial court refused D’s experts. The jury gave the verdict to P and D appealed.