Nohr v. Callahan

Filing 36

MEMORANDUM OPINION AND ORDER denying 30 Motion to Stay. Signed by U. S. District Judge Roberto A. Lange on 4/15/11. (JMM)

FILED

APR 15 2011
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JACQUELINE NOHR,
Plaintiff,

*
*

~~

CIV 09-4040-RAL

*
*

*
*

vs.
ROBERT A. CALLAHAN, M.D.,
Defendant.

*

OPINION AND ORDER DENYING
MOTION FOR STAY OF
PROCEEDINGS

*
*

I. INTRODUCTION
Defendant, Dr. Robert A. Callahan, moved for an order staying trial (Doc. 30) in this
case until the United States Court of Appeals for the Eighth Circuit has entered a final decision
in the appeal of the case of Bair v. Callahan, 4:09-cv-04009-RAL. Plaintiff Jacqueline Nohr
opposed the motion. Dr. Callahan's motion is denied for the reasons explained below.

II. FACTS
This is one of six separate medical malpractice lawsuits filed in this district against Dr.
Callahan for allegedly misplacing pedicle screws and failing to remove pedicle screws
following spinal surgeries. Dr. Callahan has been represented by the same attorneys in all six
cases, and Ms. Nohr is represented by the same law firm that represented the plaintiffs in the
five other cases against Dr. Callahan. See Haar v. Callahan, 4:08-cv-04I 23-LLP; Uhing v.
Callahan, 4:08-cv-4200-KES; Bair v. Callahan, 4:09-cv-04009-RAL; Meng v. Callahan, 4:09­
cv-04035-RAL; Smith v. Callahan, 4:09-cv-04159-RAL. Consequently, the plaintiffs and their
counsel, and in tum their experts, received access to the medical records of the other plaintiffs.
One of the recurring issues in the cases that advanced toward trial was whether the
Court should allow into evidence at trial Dr. Callahan's care and treatment of patients other

than the plaintiff in a given action. Dr. Callahan has maintained that evidence of his care and
treatment of any patients other than the plaintiff in a particular lawsuit, irrespective of the
outcome of such care and treatment, is inadmissible. Ms. Nohr's attorneys, while representing
plaintiffs in the other cases, have argued that Dr. Callahan's care and treatment of other patients
is admissible under Rule 404(b) of the Federal Rules of Evidence.
During the Bair trial, this Court found most of this evidence to be inadmissible, and
limited inquiry into Dr. Callahan's care and treatment of other patients. The jury in Bair
determined that Dr. Callahan was not liable for medical malpractice. Plaintiffs l subsequently
filed a Motion for a New Trial, which was based in part on the aforementioned evidentiary
ruling. This Court denied that motion. Bair v. Callahan, 4:09-cv-04009-RAL (Doc. 100),2011
U.S. Dist. LEXIS 20087 (D.S.D. Feb. 25,2011). On February 28,2011, Plaintiffs in the Bair
case filed a Notice of Appeal (Doc. 31-1), along with an "Appellant's Form A" indicating that
one ofthe issues for appeal is the exclusion of evidence regarding Dr. Callahan's care and
treatment of patients other than Robin Bair.
Dr. Callahan then requested a stay of proceedings and trial on Ms. Nohr's action until
the Eighth Circuit has decided the Bair case. In his motion papers, Dr. Callahan noted that he
would not object to a stay containing a narrow exception to allow for trial depositions or
discovery needed to preserve testimony and evidence for use at trial, and that a stay would not
affect Ms. Nohr's entitlement to prejudgment interest if she prevailed at trial.

III. DISCUSSION
"[A] district court haLs] the inherent power to grant [a] stay in order to control its

lThe Plaintiffs in Bair were Robin Bair (a former patient of Dr. Callahan) and his wife,
Francis Zephier. Ms. Zephier brought a claim for loss of consortium.
-2­

docket, conserve judicial resources, and provide for a just determination of the cases pending
before it." Contracting Nw., Inc. v. Fredericksburg, 713 F.2d 382, 387 (8th Cir. 1983) (citing
Am. Home Assurance Co. v. Vecco Concrete Constr. Co., 629 F.2d 961,964 (4th Cir. 1980».
The party moving for a stay has the burden, if there is "even a fair possibility" that the stay will
prejudice the non-movant, of showing specific hardship or inequity if he or she is required to go
forward. See Landis v. N. Am. Co., 299 U.S. 248, 255-56 (1936); see also Giebink v. Giebink,
No. 08-4184,2009 WL 917438, at *2 (D.S.D. 2009). In evaluating whether to stay an action,
the district court "must exercise its discretion and weigh the competing interests." Giebink,
2009 WL 917438, at *2 (citing Landis, 299 U.S. at 255-56). The interests ofjustice do not
require a stay of an action pending appeal in a related case. See Yankton Sioux Tribe v. U.S.
Army Corps of Eng'rs, No. 02-4126,2008 WL 895830, at *3 (D.S.D. 2008). "Only in rare

circumstances will a litigant in one cause be compelled to stand aside while a litigant in another
settles the rule oflaw that will define the rights of both." Landis, 299 U.S. at 255.
Dr. Callahan has failed to satisfy his burden on the motion for a stay. It is significant
that Ms. Nohr, whose counsel represents the appellant before the Eighth Circuit, opposed the
motion for a stay. More than a fair possibility exists that a stay would prejudice Ms. Nohr. Ms.
Nohr's claim already has been pending for more than two years and the alleged malpractice
occurred nearly four years ago (See Doc. 1, at 2). Ms. Nohr alleged that during the pendency of
this action she has incurred substantial medical bills and suffered pain that could be redressed if
she prevails at trial. Although Dr. Callahan noted that the median time from filing a notice of
appeal to disposition by the Eighth Circuit is only ten months, the time for disposition of a
particular case is unknown and unpredictable. Moreover, the party receiving an unfavorable

-3­

ruling by the Eighth Circuit might choose to seek rehearing en banc and review by the United
States Supreme Court. In other words, a considerable amount of time still might elapse before
appeal of Bair concludes.
Dr. Callahan expressed the concern that, without a stay, a possibility exists that the
parties in this case would have to endure multiple trials and appeals, thereby creating additional
and unnecessary work and fees by the parties and an unnecessary use ofjudicial and
administrative resources. However, such possibilities inhere within litigation. Based on the
issues presented before the Eighth Circuit, resolution of the Bair appeal would not resolve the
central issue of Ms. Nohr's claim, but rather might affect the scope of admissible evidence. If
the evidence of Dr. Callahan's other care and treatment is deemed admissible on appeal, its use
in this litigation would "not require lengthy additional discovery, trial preparation, or delay."
See Se-Kure Controls, Inc. v. Sennco Solutions, Inc., 675 F. Supp. 2d 877,881 (N.D. Ill. 2009)
(denying stay with respect to patent infringement claims and noting that proceeding with claims
posed minimal burden to the parties). Although disposition of the Bair appeal might reduce the
probability of an appeal of evidentiary rulings or retrial of this case, Ms. Nohr is entitled to her
long-awaited day in court and this case does not present one of those "rare circumstances"
where a litigant in one case should be "compelled to stand aside while a litigant in another
settles the rule of law that will define the rights of both." See Landis, 299 U.S. at 255.

IV. CONCLUSION
For the foregoing reasons, Defendant's Motion for Stay of Proceedings (Doc. 30) is
denied.

-4­

Dated April 11',2010.
BY THE COURT:

ROBERTO A. LAN E
UNITED STATES DISTRICT JUDGE

-5­