Billie Vargas Love v. United States ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-3534
BILLIE VARGAS LOVE, Administrator of the Estate of Louis Var-
gas,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:16-CV-11012 — Edmond E. Chang, Judge.
____________________
ARGUED OCTOBER 1, 2021 — DECIDED NOVEMBER 4, 2021
____________________
Before EASTERBROOK, MANION, and WOOD, Circuit Judges.
EASTERBROOK, Circuit Judge. Louis Vargas received exten-
sive medical care from the Veterans Administration. He ar-
gues in this suit under the Federal Tort Claims Act, 28 U.S.C.
§§ 2671–80, that a nurse employed by the VA was negligent in
failing to order additional tests after receiving the results of a
urinalysis in October 2015. More testing, Vargas contended,
would have revealed that he suffered from a urinary tract
2 No. 20-3534
infection. He continues: Failure to diagnose that infection led
to a heart aZack, which led to extended hospitalization, which
led to pain and inflammation caused by the catheters inserted
into his hands during this stretch in the hospital.
The district court held a bench trial and ruled against Var-
gas on all of his principal contentions. Vargas v. United States,
430 F. Supp. 3d 500 (N.D. Ill. 2019), motion for a new trial de-
nied, 2020 U.S. Dist. LEXIS 220349 (Nov. 24, 2020). The judge
found that further testing to identify a potential urinary tract
infection was not required by the appropriate standard of
care, given the judge’s finding that no other indication of in-
fection was present. The results that Vargas contended im-
plied a need to search for an infection were consistent with
benign prostate hypertrophy (an enlarged prostate), for
which Vargas had been treated since 2004.
The judge added that a urinary tract infection did not
cause Vargas’s heart aZack, nor did the hospitalization after
the heart aZack cause his reported pain and swelling. Those
medical issues stemmed from independent causes, the judge
concluded. In sum, Vargas lost for multiple reasons.
On appeal Vargas contests some of the important factual
findings, but none is clearly erroneous. (Vargas died after the
district court’s opinion was issued, and the appeal is being
prosecuted by the administrator of his estate. We refer to the
appellant as “Vargas” for clarity.)
Vargas’s principal appellate arguments concern expert ev-
idence. The district judge permiZed the United States to ad-
duce testimony from Christopher Coogan, a board-certified
urologist, whose testimony the district judge credited. The
judge prevented Vargas from objecting to Coogan’s testimony
No. 20-3534 3
because Vargas did not meet a deadline for all “Daubert mo-
tions”. Vargas now tells us that his motion to prohibit Coogan
from testifying is unrelated to Daubert v. Merrell Dow Pharma-
ceuticals, Inc., 509 U.S. 579 (1993), and rests instead on a rule
of Illinois law that a medical professional must testify within
the scope of his or her specialty. This means, Vargas insists,
that his motion to block Coogan from testifying was not sub-
ject to any deadline. The decision not to follow up on the urine
test was made by a nurse practitioner, and Vargas maintains
that as a maZer of Illinois law only a nurse practitioner may
testify about whether that decision met the standard of care.
The FTCA makes the United States liable for torts of its
employees “in the same manner and to the same extent as a
private individual under like circumstances”. 28 U.S.C. §2674¶1. This is the language on which Vargas relies for the propo-
sition that any testimony inadmissible in state court must be
inadmissible in federal court too and that an objection to an
expert’s testimony must be unrelated to Daubert. The problem
with this line of argument is that it ignores the Federal Rules
of Evidence, which for the most part are statutes. They were
enacted in 1974, and amendments to these rules prevail over
older statutes per the supersession clause in the Rules Ena-
bling Act. See 28 U.S.C. §2072(b); Henderson v. United States,
517 U.S. 654 (1996). And the Rules of Evidence are not ambig-
uous. They apply to all proceedings in federal court, see Fed.
R. Evid. 101(a), with a few limits specified in Rule 1101. The
federal rules require the use of state law on the topic of privi-
leges when state law supplies the rule of decision. Rule 501
¶2. State law supplies the rule of decision under the FTCA, so
Illinois law would govern privileges—but Coogan’s ability to
testify has nothing to do with privilege. It concerns expertise,
the subject of Fed. R. Evid. 702.
4 No. 20-3534
Rule 702 applies in every federal suit. It was amended af-
ter Daubert and altered that decision’s approach slightly, so
the district court’s reference to Daubert was unfortunate—as
the judge himself recognized when denying the motion for a
new trial. But the equation of Daubert with the current version
of Rule 702 is sufficiently widespread that any lawyer practic-
ing in federal court must know that the district court’s refer-
ence to “Daubert motions” meant all motions about the admis-
sibility of expert evidence. And Rule 702 is not the only source
of authority to control expert evidence. Rule 26(b)(4) of the
Federal Rules of Civil Procedure specifies when and how ex-
pert evidence must be produced. Rule 26, like Rule 702, ap-
plies in all federal cases. The fact that state substantive law
supplies the rule of decision does not bring state procedural
law into federal litigation. See also, e.g., Mayer v. Gary Partners
& Co., 29 F.3d 330 (7th Cir. 1994).
We recognize that a state rule cast in procedural form may
have a substantive function. One notorious example is the
rule, adopted in many states, that the defendant in a tort suit
arising from an automobile accident cannot show that the in-
jured party failed to wear a seat belt. This rule, though stated
as one about evidence, implements the substantive norm that
failure to use a particular self-protective device cannot be as-
serted as a ground of contributory negligence. The seatbelt
rule therefore applies in federal litigation. See Barron v. Ford
Motor Co., 965 F.2d 195 (7th Cir. 1992). Cf. Gasperini v. Center
for Humanities, Inc., 518 U.S. 415 (1996). Whether at least some
expert evidence is essential to a claim also may be understood
as substantive. Cf. Young v. United States, 942 F.3d 349 (7th Cir.
2019) (even though a physician’s report may be essential as a
maZer of state substantive law, state procedures about when
and how it must be produced do not apply in federal court).
No. 20-3534 5
How to prove the standard of care in a malpractice suit is a
maZer of evidence; we do not see in Illinois law any disguised
substantive rule on the subject. The substantive norm is that
medical care conforming with professional standards is not
actionable. Which experts may testify about what topics is a
maZer of competence, which in a federal forum comes within
the scope of the Federal Rules of Evidence.
Vargas relies on Gipson v. United States, 631 F.3d 448, 451
(7th Cir. 2011), which remarked that, because all FTCA cases
are tried in federal court, using state evidentiary rules would
avoid outcomes different from those that would obtain in
state court. That may well be true. But Gipson did not hold
that state rules do apply; indeed, the opinion added that
“nothing turns on” (id. at 452) its ruminations about evidence.
Gipson did not discuss the Federal Rules of Evidence or the
holdings of the Supreme Court that the federal rules prevail
over any inconsistent state rules, no maZer how much the dif-
ference between state and federal rules affects the outcome.
See, e.g., Shady Grove Orthopedic Associates, P.A. v. Allstate In-
surance Co., 559 U.S. 393 (2010); Walker v. Armco Steel Co., 446
U.S. 740 (1980). All it held is that, when expert testimony is
essential to a substantive decision, that is true in federal as
well as state court. Today’s appeal requires us to choose be-
tween dicta in Gipson and holdings of the Supreme Court; that
contest can have only one winner. Federal rules govern the
admissibility of expert evidence in suits under the FTCA.
Coogan’s testimony was admissible under Rule 702. Var-
gas does not argue otherwise. The district judge therefore was
entitled to consider Coogan’s view that the applicable stand-
ard of care did not require follow-up testing in October 2015
to look for a urinary tract infection.
6 No. 20-3534
And, for what it is worth, we doubt that Illinois would
proceed otherwise in its own courts. The doctrine on which
Vargas relies—one under which medical professionals must
stay within the scope of their expertise, see, e.g., Sullivan v.
Edward Hospital, 209 Ill. 2d 100, 113–15 (2004)—is designed to
ensure that judges and juries rely on properly supported tes-
timony. So, for example, a nurse practitioner could not testify
in Illinois to the standard of care by a urologist; medical doc-
tors have greater knowledge than nurses on maZers within
their specialties. Federal courts would reach the same conclu-
sion under Rule 702. But the doctrine need not work in re-
verse. Coogan testified that even a board-certified urologist
would not have seen anything in the October 2015 test result
calling for further lab work. If that is a correct statement of the
medical standard of care at the highest level—and the district
judge found that it is—then a nurse practitioner’s identical de-
cision cannot be negligent. Illinois does not hold nurses to the
higher standard of specialists; but when the standard of spe-
cialists has been met, a nurse cannot be blamed for a bad out-
come.
None of Vargas’s remaining arguments requires discus-
sion.
AFFIRMED