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  • Dental Malpractice Case

  • Dental Malpractice Case



    Plaintiff-Appellee and Cross- Appellant,



    Defendant-Appellant and Cross-Appellee,


    Nos. 98-6485, 99-6012



    (D.C. No. CV-97-1398-C)

    Robert Todd Goolsby, Goolsby, Olson & Proctor, Oklahoma City, Oklahoma (Kirk Olson and David Proctor with him on the briefs) for Appellee and Cross-Appellant. Jack S. Dawson, Miller Dollarhide, Oklahoma City, Oklahoma, (James A. Scimeca and Steven E. Bracklein with him on the briefs) for Appellant and Cross-Appellee.
    Before EBEL, HOLLOWAY and HENRY, Circuit Judges.
    HOLLOWAY, Circuit Judge.
    Plaintiff/appellee Mark Macsenti sued his dentist, defendant/appellant Jon Becker, and Becker's assistant, Heather Davis, for injuries he allegedly suffered during a 1996 dental procedure performed in Becker's office in Clinton, Oklahoma. Macsenti sought relief under theories of negligence and intentional infliction of emotional distress, inter alia. Jurisdiction in the district court was based on diversity of citizenship. At the close of the plaintiff's evidence, the district judge granted judgment as a matter of law in favor of Heather Davis, but denied a motion by Becker for such a judgment. (Hereinafter in this opinion we will use "defendant" only to refer to Dr. Becker.) The jury ultimately awarded compensatory and punitive damages to plaintiff Macsenti, and Becker's post-trial motions challenging the verdict were denied. Becker now brings this appeal from the district court's judgment, invoking our jurisdiction under 28 U.S.C. § 1291. The cross-appeal of plaintiff challenges the denial of prejudgment interest by the trial judge.

    Defendant Becker had a dental practice in Clinton, Oklahoma. Plaintiff Macsenti went in to defendant's office for removal of one molar and for dental implants on July 15, 1996, about 9:00 a.m., a procedure expected to take no more than three hours. The procedure was not begun until plaintiff had already been in the office for some time. Defendant had decided to place plaintiff under "conscious sedation" for the procedure, and the first thing done was to order medications, which were picked up from a local pharmacy. About 11:00 a.m. plaintiff was given the medications, whose trade names were halcion and mepergan fortes. According to plaintiff's evidence, he was also put on nitrous oxide at the same time and remained under nitrous oxide for most of the remainder of the day and evening. One of plaintiff's experts, Dr. Sullivan, testified the particular procedure defendant was to perform should take less than an hour. III App. at 661. The procedure could have been done without the use of halcion, mepergan fortis and nitrous oxide. Id. at 662.

    Ms. Shirley Teague testified that the day of plaintiff's procedure was the first and last day of her employment as defendant's dental assistant. II App. 343. Ms. Teague had recently completed a "dental lab" program at Moore/Norman Vo-Tech School for one year. On July 15, 1996 Heather Davis was at defendant's dental office, and she showed Teague how he liked his tray of instruments set up. Teague saw plaintiff Macsenti first around 11:00 a.m. Id. at 345. Teague and Davis assisted Dr. Becker with a couple of other patients early that day. According to Teague, however, Davis was not present after defendant actually began to work on plaintiff. After Macsenti came in, Teague and Davis took him into cubicle 2, Davis draped him with a cloth in the chair and gave him medication. Davis put the nitrous oxide on him, turned it on and they left Macsenti there. Id. at 346. At 1:00 p.m. Ms. Davis took the nitrous oxide off of Macsenti, sat him up, and gave him another pill. Id. at 347. Shortly after that, plaintiff Macsenti was laid back down, and Dr. Becker and Teague began the procedure on him, which consisted of doing dental implants. Id. The first part of the procedure went well but was "just slow going." Id. at 348. When Dr. Becker started the second post holes, he pushed away from the patient. Dr. Becker had rollers on his chair and he "pushed away from the patient . . . pushed away and passed out . . . he pushed away and dropped the drill. He was just out cold." Id.

    Teague said that she was stunned and did not know what to do. Dr. Becker was out for a while, ten minutes or so. He woke up and started the procedure again. Id. Defendant Becker used the drill again on Macsenti, and did not re-sterilize it before he used it on him. He started again, but he did not last long because he passed out again. Id. at 349. He woke back up and started again and passed out again. Teague said that she shook defendant, woke him up and asked him to step out in the hall. Id. at 349-50. To this point in time, defendant Becker had passed out about three times. Becker's appearance at this time was that he was staggering and as he got up to leave, he fell and knocked the tray off. Plaintiff Macsenti was still on nitrous oxide. Teague said that in the hall she had a conversation with defendant Becker, telling him she was concerned for him and the patient. She testified that defendant Becker said he was tired, that he had stayed up all night and was writing a thesis. Id. at 350. Ms. Teague said that defendant Becker assured her everything would be all right and they went back in and Teague picked up the equipment on the floor and got more sterilized packages and they started the procedure again.

    Defendant passed out again, and this happened several times. Id. at 351. Teague asked Ms. Callaway, the receptionist, where Heather Davis was, and was told that Davis and Mrs. Becker had left and were in Oklahoma City. Teague asked Ms. Callaway if Becker had any medical problems such as diabetes or if he was on drugs, but Ms. Callaway did not know and said that this condition had never happened before. Id. at 351-52. At these times, plaintiff Macsenti was still on nitrous oxide. Every time they started the procedure again, defendant Becker would pass out. Ms. Teague said that her idea was that Dr. Becker passed out or fell asleep "10 or 15 times . . ." Id. at 352. This was all while plaintiff Macsenti was on nitrous oxide. Id. At about this time Dr. Becker's daughter came to the office for some money, and Teague sent her to get some coffee for Dr. Becker. Teague put Dr. Becker in cubicle 1, and he went to sleep there for approximately 30 minutes. Id. Teague shook Becker to wake him up, spilled some coffee on him , and Becker "giggled" at Teague.

    Dr. Becker had a problem with his headlight about 3:30 or 4:00 p.m. Teague testified that she had a conversation with Dr. Becker's wife on the phone, explaining to her that Dr. Becker was literally passing out, and Mrs. Becker told Teague that she should handle the problem, that Heather Davis was on the way. Id. at 356. Teague turned down what she believed was the nitrous oxide. Dr. Becker had problems, apparently, with the drill. Id. at 357. He then said he would be right back, and got up and walked out. Ms. Callaway went out the back door to the parking area looking for Dr. Becker, and she came back in and told Teague that Dr. Becker's car was gone. Macsenti was still on nitrous oxide. Id. at 358. The departure of Dr. Becker occurred at approximately 6:00 p.m. At around that time Callaway and Teague were discussing what they should do. Callaway then went outside and Dr. Becker's car was there but he could not be found.

    Later Becker came back with another gentleman, and at this time plaintiff Macsenti was still on nitrous oxide. Teague and defendant Becker began the procedure again. Heather Davis came in and asked Teague if she was tired and she answered that she was. Teague explained to Davis what had been happening to Dr. Becker. Davis told Teague she could go home, and she left about 8:00 in the evening. Id. at 360. On cross-examination, Ms. Teague testified that Macsenti had the nitrous oxide mask off that afternoon when he went to the men's room and also when he was given medication at 1:00 p.m. Id. at 367. On cross-examination Ms. Teague restated her testimony that defendant passed out for some ten minutes and one time he was asleep thirty minutes, and Teague was asked whether she saw these instances some 10 to 15 times, and replied: "Yes, sir." Id. at 371.

    It is undisputed that Dr. Becker left the office around 6:00 p.m. to appear in municipal court on a charge of driving under suspension, even though plaintiff was still in the chair and the procedure had not been completed. When defendant drove back to his office from the court appearance, he was detained by the police and taken to the station to be booked on a new charge of driving under suspension. He finally returned to the office after 7:00 p.m. and completed plaintiff's procedure. Plaintiff was finally released about 9:00 p.m.

    Plaintiff Macsenti testified that he now lives in Escalon, California, having lived earlier in Weatherford, Oklahoma. II App. 527. Macsenti was having some difficulty with one tooth that had "gone bad" on him in June of 1996. He learned about defendant from a phone book ad and called his office. After some delay, he had a brief visit that night with Dr. Becker who told him about root implants. Id. at 531. It was agreed he would return to California and would call for an appointment when he returned. The appointment was scheduled for July 15, 1996 and Macsenti arrived at Dr. Becker's office a little before 9:00 a.m. Id. at 534.

    He was given some medications by Dr. Becker's stepdaughter, Heather Davis. Id. at 534. His memory was poor about the events that followed. He had some sensations of a jarring that got his attention, a pinching on his lip, and a hurting. Id. at 535. He remembered some conversations about coffee and some giggling at some point. Id. at 535.

    Macsenti remembers leaving the doctor's office and the next thing that stands out in his memory was a comment that it was 9:00 and Macsenti asked someone "[i]s that real?" II App. 536. He remembered shaking his head and getting in the back of a car. He was told that it really was 9:00. Id. at 536. He remembers being given no parting instructions from Dr. Becker's office and no explanations why he had been there for some 12 hours. Id. Macsenti was frightened because he did not know what happened to him that day and slept in a chair because he was afraid to lay his head down. Id. at 537-38.

    Macsenti did not return to work until Saturday following the Monday dental procedure. He did not feel well and had noise in his head and could not concentrate. II App. 541. Later he went to see Dr. Beller and then Dr. Aaron. Id. at 541-42. There he complained of being dizzy, lightheaded and off balance. Id. at 544-45. He later saw Dr. Ernest Warner, who examined him, and he then had tests done at Baptist Hospital, a blood test and a MRI or CT scan. He later saw Dr. Whatley who conducted some neuropsychological testing. After this he moved to California. Id. at 548.

    Macsenti testified that after his dental surgery he was having problems and fearful to do jobs. Id. at 562. He became fatigued easily. Since the July, 1996 dental surgery with Dr. Becker he has difficulty in building structures and does not have the physical stamina he had earlier for his carpentry work. At times he builds a structure and then a couple of days later his thinking process would go back to start "from scratch again." Id. at 568. On visiting Dr. Aaron on August 2, plaintiff related that he was dizzy, lightheaded and off balance. Id. at 572. He related to Dr. Simon three days later that he was not in discomfort. On August 28 on revisiting his family doctor, Dr. Aaron, he reported dizziness and feeling as though he had the flu at times. II App. 572. When he visited a Dr. Stephen, a dentist at a Putnam City dental group, plaintiff said he was in "good" health on the questionnaire. Id at 573.

    Macsenti saw Dr. Ernest Warner on September 5, 1996 and reported that he could not figure out the construction of "dados," joints used in construction, and he had to read instruction material several times because of trouble concentrating and retaining what he has read. Id. at 576. In a journal that Macsenti prepared within a week after July 15, 1996 he recorded numerous times that he was dizzy, off balance and was "scared" because he did not know what was wrong with himself. Id. at 578.

    In support of his claim of injury by Dr. Becker's procedure, plaintiff offered testimony of Dr. Ernest G. Warner, Jr. Dr. Warner is a neurologist who has had experience in that field since 1961. II App. 600. He practices at Baptist Hospital in Oklahoma City, inter alia. His work includes being the medical director of Baptist Rehabilitation Unit where he works with people with brain damage. Id at 601. He explained that a hypoxic injury results from too little oxygen being in the blood for the brain. From the history given by plaintiff, Dr. Warner had an opinion within a reasonable degree of medical probability that Macsenti received hypoxic insult or brain damage as a result of the July 15 procedure. Id. at 604-05. Macsenti's problems and his brain injury were consistent with other hypoxic brain injuries which Dr. Warner had treated. Id. at 608.

    Dr. Warner noted that Macsenti had received halcion and mepergan fortis, which is a combination of demerol and phenergan. II App. 608. All three drugs are sedatives. The dosage of halcion received by Macsenti was more than Dr. Warner would "certainly prescribe." Id. at 609. Dr. Warner said that he would not give a patient mepergan fortis and halcion at one time as administered to Macsenti. Id. at 610. Dr. Warner said that Macsenti has mild brain damage with which his complaints were consistent. Id. at 616-17. He has been improving but Dr. Warner testified he did not believe the condition would ever clear up completely. Id. at 618. Macsenti suffers from depression, was confused and slow in thinking. Id. at 622-24. Dr. Warner agreed that Macsenti's illness could have existed before he saw Dr. Becker. Id. at 629.

    In response to plaintiff's experts, Dr. Sullivan and Dr. Warner, defendant offered testimony by his experts including Dr. Thomas Whitsett. He is a physician on the faculty of the University of Oklahoma College of Medicine. III App. 839. Dr. Whitsett sees a few private patients. He testified concerning a textbook of internal medicine by Harrison, and a statement that hypoxia, the medical term for reduced oxygen in the blood, rarely if ever causes permanent damage to the nervous system. Id. at 840. He opined that diffusion hypoxia is said to occur primarily in people breathing a low level of oxygen, 21% or less, and if they are breathing higher levels of oxygen as in Macsenti's case, diffusion hypoxia does not occur. Id. at 844. Referring to an article found in Dr. Warner's files, tests were reported on a mixture of 50% nitrous oxide and 50% oxygen which produced no evidence of diffusion hypoxemia. Id. at 849. From a test at 79% nitrous oxide and 21% oxygen (such as was breathed in the courtroom) there was a modest amount of diffusion hypoxia. Id. at 850. The medications under discussion can depress the central nervous system. Dr. Whitsett said that use of merpergan fortis and halcion in a dental setting was appropriate. Id. at 854. Dr. Whitsett said that he had reviewed the dosages Dr. Becker used on July 15, 1996 and they were not improper overdoses. Id. at 856-57. He felt that the drugs were safely given together in those dosages. He said that he thought that Dr. Warner and Dr. Sullivan were way off the scientific base in concluding that halcion, mepergan fortis, and nitrous oxide, administered in combination over a period of time, caused Macsenti to suffer hypoxic insult. III App. 890-91.

    On cross-examination, Dr. Whitsett stated that he had never treated or examined Macsenti, had not reviewed his dental x-rays, and had not reviewed any training or emergency protocols at Dr. Becker's office. Id. at 874. Dr. Whitsett had not performed any dental implant surgery or provided any anesthetic services of the nature used for a patient in a dental implant procedure. He conceded that Dr. Becker leaving his patient at about 6:15 on July 15, 1996 to go to traffic court was an irregular thing to do. Id. at 875. It was inappropriate to leave Macsenti in the hands of the assistant who was on the job for her first day and an insurance clerk. Id. at 876-77.

    Defendant also presented testimony by a clinical psychologist, Dr. David Edwin Johnsen. He said that he has been a licensed psychologist since 1989 in Oklahoma. A psychologist typically deals with a variety of psychological and psychiatric disorders. III App. 900-901. His graduate training focused on neuropsychology which is the study of brain behavior relationships. Id. at 901.

    Dr. Johnsen had reviewed records of Mark Macsenti and a neuropsychological evaluation performed by Dr. Whatley at the defendant's request. He did not personally meet or test Macsenti. Id. at 902. He reviewed the test score data and Dr. Whatley's report. From the review of the data Dr. Johnsen opined that there were areas of dysfunction that appeared to be occurring with Macsenti which appeared relatively mild in severity. III App. 905-06. A mild dysfunction means that it is difficult for the person to perform a certain task. Macsenti had mild memory difficulties and some visual, perceptual and attention difficulties noted on certain tests. On the Conners' Continuance Performance Test, Macsenti was in the impaired range. Id at 907. He did well on other tests including ability to perform mental arithmetic, conception, et al. "within the average range." Id. at 907. The indication is that he had a "mild problem" as opposed to a severe problem. Macsenti performed within the average range on a picture puzzle test and was able to perform a block design subtest. Id. at 909.

    Dr. Johnsen further testified that such problems could be produced by old injuries to the head or exposure to inhalants. Mild impairment such as Macsenti had could have possibly preexisted July 15, 1996. Id. at 911. The mild impairment identified may have had an effect in terms of speed at which Macsenti is able to perform work he has been doing. From the data he saw nothing to indicate he is incapable of performing his activities but it might just take him longer to do them. Id. at 912.

    Dr. Johnsen saw no evidence of malingering by Macsenti. III App. 925-26. Macsenti's test results are consistent with somebody who has suffered hypoxic insult. Dr. Johnsen did not know the cause of such hypoxic insult. He found Macsenti's test results to be mild in brain impairment which was still brain impairment. Id. at 926. Macsenti did poorly on a test requiring shifting back and forth between different tasks, which was one of the tests he did most poorly on. Id. at 927. Macsenti appeared to be mildly depressed. Id. at 929. Any disagreement between Dr. Whatley and Dr. Johnsen was as to the degree of impairment. Macsenti has some dysfunction based on Dr. Johnsen's review of the tests. Id. at 929-30.

    Defendant's evidence concerning the events of July 15 contrasted sharply with plaintiff's evidence on several major points. For example, both defendant and Heather Davis (who was defendant's step-daughter as well as having been his dental assistant for several years) testified that she was present and assisting defendant during the procedure. Davis denied that defendant passed out during the procedure. III App. 820. Defendant testified that it would not have been possible for him to have completed the procedure had he been under sedation, falling asleep, or drunk. Id. at 988-89. He said that Teague and another former employee who had testified that he passed out during plaintiff's procedure had not told the truth. Id. at 1007-09. Defendant attributed the length of the procedure to equipment problems he experienced during the day and plaintiff's failure to pre-medicate.

    Further evidence will be discussed as necessary for our analysis of the legal issues raised on appeal.

    Defendant's first argument is that the district court committed error by admitting expert evidence on the contested issue of causation without first having made threshold determinations that the testimony was reliable and would be helpful to the jurors, an argument based on Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Defendant did not object to the testimony when it was admitted during trial. He raised his Daubert argument after the close of all the evidence by a motion to strike Dr. Sullivan's testimony about diffusion hypoxia, and by a motion for judgment as a matter of law, presented also at the conclusion of all of the evidence. III App. at 1033-34. Consequently, we will review the admission of the expert testimony only for plain error. See Goebel v. Denver & Rio Grande W.R.R., 215 F.3d 1083, 1088 n.2 (10th Cir. 2000).

    Defendant's attack is focused primarily on the testimony of Dr. Stephen Sullivan, a professor of oral surgery at the University of Oklahoma and a practicing dentist. Dr. Sullivan teaches pain and anxiety control to dentistry students, as well as oral surgery. He deals specifically with the areas of anesthetics that can be used in dental procedures. III App. 655. He does quite a bit of dental implant surgery in his practice. Id.

    Dr. Sullivan's opinion was that plaintiff had suffered brain injury from diffusion hypoxia,(1) with the use of multiple drugs, III App. 679, 689-90, and that the diffusion hypoxia resulted from the combination of medications administered to plaintiff, which he described as "absurd," in combination with prolonged use of nitrous oxide.(2) Id. at 664-65. Dr. Sullivan testified that administering the medications given and nitrous oxide was below the accepted standard of care for such a case. Id. at 668. Leaving the building and plaintiff during the procedure was grossly negligent conduct. Id. at 684. Dr. Sullivan said that the plaintiff had been given four central nervous system depressants,(3) and that a depressed respiration rate and shallower breathing were well known effects of central nervous system depressants.

    Dr. Sullivan's credentials are not challenged. Defendant focuses his attack on the absence of professional literature to support his opinion and asserted conflicts between portions of Dr. Sullivan's reasoning and principles which do find support in the professional literature. Defendant's positions disputing Dr. Sullivan's opinions were energetically developed at trial through cross-examination of Dr. Sullivan and through the testimony of defendant's own experts, inter alia.

    On careful review of this record, we find no plain error such as to excuse a timely Daubert objection to plaintiff Macsenti's expert testimony. We are convinced that Defendant forfeited the opportunity to subject the expert testimony of Dr. Sullivan and plaintiff's other experts to a Daubert challenge by failure to make a timely objection before that testimony was admitted. After rejecting the "general acceptance" standard long applied from Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), Daubert concluded:

    To summarize: "General acceptance" is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence ­ especially Rule 702 ­ do assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.

    509 U.S. at 597; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). Thus the trial judge is assigned the task of insuring that an expert's testimony rests on a reliable foundation and is relevant, but Daubert does not mandate an inquiry questioning and challenging the scientific proffer absent a timely request by an objecting party.

    It is true that in Hoult v. Hoult, 57 F. 3d 1, 4 (1st Cir. 1995), the First Circuit observed that "[w]e think Daubert does instruct district courts to conduct a preliminary assessment of the reliability of expert testimony, even in the absence of an objection. We do not think, however, that district courts are required, sua sponte, to make explicit on­the­record rulings regarding the admissibility of expert testimony." Id. at 4-5. The First Circuit added that "[r]ather, we assume that the district court performs such an analysis sub silentio throughout the trial with respect to all expert testimony." Id.

    We note that there are other circuit opinions that have reached the same conclusion as we do ­ namely that a decision to admit expert opinion evidence will be reviewed only for plain error when objections under Daubert/Kumho are not timely made. In Christopher v. Cutter Laboratories, 53 F.3d 1184 (11th Cir. 1995), the Eleventh Circuit dealt with problems similar to those in our record relating to Daubert. The court cited Daubert and said that "there is no question that several of [a medical expert's] statements, viewed in isolation, were statistically invalid and, as such, that the district court should not have admitted them." 53 F.3d at 1191.

    However, in Christopher the court noted that with respect to the medical expert's testimony, it was very clear that the defendant made no objection that the evidence was statistically inaccurate, id. at 1192; that the defendant filed no motion in limine challenging the expert's proposed testimony; and that defendant did not raise any contemporaneous objections. The Eleventh Circuit concluded that "[i]n order to preserve this issue on appeal, [the defendant] must have objected to the challenged testimony." Id. The court emphasized that

    If [the defendant] believed the medical testimony was statistically invalid, it should have objected to that testimony, giving [the witness] the chance to explain his answers. Objecting would also have provided the district court with the opportunity not only to make a ruling on the accuracy and admissibility of the challenged testimony, but also to clarify that testimony.

    Id. The court held that absent an objection, it could review the challenged evidence only for plain error, which the trial judge did not commit.

    The Ninth Circuit also issued a decision under Daubert which is persuasive here. See Marbled Murrelet v. Babbitt, 83 F.3d 1060 (9th Cir. 1996). There the district court had issued a permanent injunction enjoining Pacific Lumber Company from harvesting trees in an environmentally sensitive area. The logging was found to be a threat that would harass and harm the marbled murrelet and would cause a "take" of the birds in violation of the Endangered Species Act. Pacific Lumber appealed, arguing, inter alia, the evidence was insufficient as required proof of harm, principally that the proof failed to meet the standard for reliable scientific evidence under Daubert. Id. at 1066. The Ninth Circuit recognized that unreliable evidence is necessarily insufficient, but held that "the appropriate time to raise Daubert challenges is the trial. By failing to object to evidence at trial and requesting a ruling on such an objection, a party waives the right to raise admissibility issues on appeal." Id. at 1066.

    The court noted that by failing to request a ruling in the district court on its Daubert objections, Pacific Lumber evaded the district court's decision on the issue and denied the Environmental Protection Information Center the opportunity to lay a better foundation for the evidence. Id. at 1067. The court held that permitting Pacific Lumber to challenge the reliability of the scientific evidence under Daubert on appeal, in the guise of an insufficiency of the evidence argument, would give Pacific Lumber an unfair advantage. The Daubert argument was rejected. Id. at 1067. We feel that the holding is most persuasive here where we have similar circumstances in that defendant Becker failed to make timely Daubert objections below, depriving the trial judge of the opportunity to make a Daubert analysis and denying plaintiff Macsenti an opportunity to support the reliability and relevance of his evidence by further proof and argument.

    Our court discussed the admissibility of evidence in light of the Daubert and Kumho requirements in Questar Pipeline Co. v. Grynberg, 201 F.3d 1277 (10th Cir. 2000). We noted, id. at 1289, the Supreme Court's statement in Daubert that even after evidence is initially admitted, "in the event the trial court concludes that the scintilla of evidence presented supporting a position is insufficient to allow a reasonable juror to conclude that the position more likely than not is true, the court remains free to direct a judgment . . . . " 509 U.S. at 596. We said, however, that we did not read this statement in Daubert as overriding the general requirement of a timely objection to the evidence and that a "party may waive the right to object to evidence on Kumho/Daubert grounds by failing to make its objection in a timely manner." 201 F.3d at 1289-90.(4)

    Later in Goebel v. Denver and Rio Grande W.R.R. Co., 215 F.3d 1083 (10th Cir. 2000), this court dealt again with the Daubert/Kumho issue. On that record we held that there was an abuse of discretion in admitting expert testimony because of the lack of Daubert analysis and findings on admissibility. However we made it clear that:

    [W]e specifically hold that a district court when faced with a party's objection, must adequately demonstrate by specific findings on the record that it has performed its duty as gatekeeper.

    Id. at 1088 (emphasis added and footnote omitted). Thus we did not hold that a Daubert analysis was required sua sponte but noted that enforcement of the requirement for the Daubert analysis was premised on "a party's objection." Cf. United States v. Velarde, 214 F.3d 1204, 1209 (10th Cir. 2000) (abuse of discretion to admit expert testimony where the record revealed no Daubert/Kumho reliability determination although Kumho was specifically called to the trial court's attention).

    Here the Daubert objection to expert testimony, specifically that of Dr. Sullivan, was made at the close of evidence, as Appellant's Opening Brief, p. 29-30, specifically states. Counsel for defendant Becker after conclusion of the evidence there said he had two motions, one a Daubert motion to exclude all the evidence of Dr. Sullivan about diffusion hypoxia because it "flies in the face of all scientific knowledge literature about it." III App. 1033. The other motion was for judgment as a matter of law in favor of the defendant, this being presented immediately after the motion to exclude Dr. Sullivan's testimony on diffusion hypoxia. The trial court denied the motions. Id. at 1034. The judge addressed the request to exclude Dr. Sullivan's testimony under Daubert, stating: "I think the time to make that motion is before he testifies." Id. at 1033.

    We are convinced that the motions were untimely here.(5) By waiting until after the close of all the evidence to raise the Daubert/Kumho objection, basic errors occurred. The proponent of the evidence was deprived of the opportunity to offer other supporting proof from Dr. Sullivan and from literature. Moreover the trial judge was disadvantaged in that she was not alerted to the need of stating Daubert/Kumho findings and analysis. And, obviously, appellate review by us is impaired as well, due to the inadequacy of the record. Accordingly on this record and persuasive precedent we hold that the Daubert/Kumho objection was waived, and our review is only for plain error.

    On careful review of this record, we find no plain error in the rejection by the trial judge of the belated Daubert objection. Dr. Sullivan's general theory was that the injury here resulted from the excessive combined use of central nervous system depressants. His opinion on the specifics of this case, in the absence of published studies on this precise combination of medications and prolonged use of nitrous oxide, was not so manifestly unreasonable that its admission constituted plain error. See Christopher v. Cutter Laboratories, 53 F.3d at 1192.

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    Accordingly, the judgment of the district court is affirmed except for the failure to award prejudgment interest; the cause is remanded to the district court for entry of an amended judgment including prejudgment interest as proper under Oklahoma law.

    1.Hypoxia is defined as the "reduction of oxygen supply to tissue below physiological levels despite adequate perfusion of the tissue by blood." Dorland's Illustrated Medical Dictionary 812 (28th ed. 1994). Diffusion is described as "the process of becoming diffused or widely spread . . . ." Id. at 466.

    2.Nitrous oxide is defined as an "odorless gas that is a weak inhalational anesthetic . . . ." Id. at 1140.

    3.The medication having the trade name of mepergan fortes is a combination of two drugs. As noted earlier, plaintiff was also given the medication known as halcion.

    4.Our rejection of the Daubert argument in Questar was actually based on the fact that Questar did not show that the witness's testimony was offered as expert testimony. Id. at 1290.

    5.Defendant seems to try to justify his failure to make contemporaneous objections at trial on the Daubert issue by asserting that he was surprised by a change in Dr. Sullivan's theory, his testimony at trial allegedly being in conflict with testimony he had previously given before the Oklahoma Board of Dentistry. On its face, however, this rationalization fails: If the testimony was unexpected and a departure from the witness's previously expressed opinion, that would seem to amplify the motivation to raise the issue at once. Objection should have been made at the latest when the allegedly new and different explanation was given at trial.

    This would have given the trial judge the opportunity to evaluate the basis of the testimony and would have given the plaintiff the opportunity to provide further foundation for the testimony. We also note that defendant had taken Dr. Sullivan's deposition before trial and explored the basis for his opinion, see III App. 692-93, and in opening statement characterized Dr. Sullivan's theory as "junk science," II App. 328. In short, we are not convinced that defendant was surprised by the trial testimony, but in any event nothing excuses the failure to make timely objection at trial.

    6.The verdict filed in this case read as follows in pertinent part (I App. at 136-137):

    Verdict Form

    We the jury, duly empaneled and sworn in the above entitled cause, do, upon our oaths, as to plaintiff's negligence claim, find:

    X For plaintiff Mark Macsenti and against defendant Jon D. Becker and award him damages in the amount of $500,000.

    ____ For defendant Jon D. Becker and against plaintiff Mark Macsenti.

    We, the jury, duly empaneled and sworn in the above entitled cause, do, upon our oaths, as to plaintiff's intentional infliction of emotional distress claim, find:

    X For plaintiff Mark Macsenti and against defendant Jon D. Becker and award him damages in the amount of $500,000.

    ____ For defendant Jon D. Becker and against plaintiff Mark Macsenti.

    (To be completed only if you award plaintiff damages in Section I or II above)

    We, the jury duly empaneled and sworn in the above entitled cause, do, upon our oaths, find in favor of the plaintiff Mark Macsenti as follows:

    We do X do not ___ (check one) find by clear and convincing evidence that the defendant, Jon D. Becker, acted in reckless disregard of the rights of others. June 12, 1998


    7.After the verdict for the damages of $500,000 on both the negligence and intentional infliction of emotional distress claims were returned, see note 6, supra, there were some discussions by counsel in chambers with the trial judge. In proceedings that followed in open court but out of the presence and hearing of the jury the judge stated:

    THE COURT: I think we need to redo on the record the discussion we just had in chambers beginning with Mr. Dawson's argument that the verdict actually is­should be construed as a verdict of $500,000 rather than $1 Million, to which plaintiffs object. Is that a fair statement?

    MR. OLSON: That's correct, your Honor.

    THE COURT: It's my opinion that the instructions on damages tell them that they cannot award - - that plaintiff may only recover once for any one item but they are to indicate their decision on each claim. To me, that clearly results in the $500,000 being imposed twice, once for each cause of action. I have offered to submit an interrogatory to the jury to make certain that is their intent in case they misconstrue these instructions, and Mr. Dawson has objected to them. In the face of his objections, I will not do it. Is that a fair statement, Mr. Dawson?

    MR. DAWSON: Yes, your Honor.

    IV App. at 1074. As explained in the text, we agree with the trial judge's construction of the verdict, namely, that the verdict, in light of its form and the instructions given to the jury on damages, shows clearly the jury's intent to award recovery for the plaintiff of $500,000 on each of the two claims, one for negligence and one for intentional infliction of emotional distress.

    8.We find no merit in plaintiff's contention that defendant waived all objections to all of this and other similar testimony by not making a contemporaneous objection at trial. The trial judge made it clear at the start of trial that she would permit evidence of encounters with the police which occurred within two weeks before the date at issue.

    9.In response to defendant's argument, plaintiff's counsel warned of "opening up a Pandora's box" by going into the history of the relations between the police and the Beckers. He said that if the evidence were allowed, he would want to call three police officers in rebuttal. III App. 951.

    10.We must also reject defendant's contention that the judgment should be reversed because of the prejudicial effect of the cumulation of alleged evidentiary errors. We have concluded that any errors were at most harmless in the context of the trial as a whole. Similarly, we hold that the cumulative effect of any errors was at most harmless.

    11.For the same reasons, we reject defendant's contention that the evidence was insufficient as a matter of law to support the award of punitive damages.

    12.The cases are Miller v. Miller, 956 P.2d 887, 901 (Okla. 1998), and Chandler v. Denton, 741 P.2d 855, 867-68 (Okla. 1987).

    13.IV App. 1119.

    14.IV App. 1111-12.

    15.In addition to medical expenses and diminution of earning capacity, the jury instructions listed the following as injuries for which plaintiff should be compensated in the event that the jurors had decided in his favor on the claim: mental pain and suffering, past and future; physical pain and suffering, past and future; and physical condition immediately before and after the incident. The jurors were also told to consider the nature and extent of plaintiff's injuries. I App. 124-25.

    16.One of the instructions had explained to the jury that there would be a second stage for affixing the amount of punitive damages if the jury made this finding. I App. 127-28.

    17.We note also that there was evidence from which the jury could have inferred an attempt to conceal what had occurred. In response to plaintiff's requests for his records, he was told that they had been misplaced. The records were eventually found in defendant's daughter's dresser drawer. Although defendant had an innocent explanation for this oddity ­ which attributed the event to simple mistake ­ the jury was of course free to disbelieve that explanation.

    *** Any law, statute, regulation or other precedent is subject to change at any time ***

    **The laws cited may not apply in your jurisdiction - Consult a local lawyer.**

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