Fredilito Tumbaga v. United States

FILED
NOT FOR PUBLICATION AUG 29 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FREDILITO TUMBAGA; et al., No. 12-35852
Plaintiffs - Appellants, D.C. No. 3:06-cv-00247-SLG
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Argued and Submitted August 14, 2014
Anchorage, Alaska
Before: FARRIS, D.W. NELSON, and NGUYEN, Circuit Judges.
Fredilito Tumbaga appeals the district court’s entry of judgment for the
United States following a bench trial on his medical malpractice claims under the
Federal Tort Claims Act. We have jurisdiction under 28 U.S.C. § 1291. We
review questions of law de novo, United States v. Roblero-Solis, 588 F.3d 692, 698
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
(9th Cir. 2009); the district court’s factual determinations for clear error, Fed. R.
Civ. P. 52(a)(6); and its rulings on the admissibility of expert testimony and denial
of a motion to amend the judgment for abuse of discretion, Millenkamp v. Davisco
Foods Int’l, Inc., 562 F.3d 971, 977 (9th Cir. 2009); Sch. Dist. No. 1J, Multnomah
Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). We affirm.
The district court did not clearly err in finding that the Alaska Native
Medical Center physicians’ failure to diagnose Tumbaga’s left vertebral artery
dissection and first stroke was not a substantial factor in causing or exacerbating
his second stroke. See Alaska Stat. § 09.55.540 (outlining the plaintiff’s burden of
proof in malpractice cases); Ennen v. Integon Indem. Corp., 268 P.3d 277, 290
(Alaska 2012) (stating that the “cental question” in the proximate cause analysis is
“whether the conduct has been so significant and important a cause that the
defendant should be legally responsible” (internal quotation marks omitted)).
Tumbaga argues that had the dissection and first stroke been diagnosed, he
would have been prescribed Heparin, a blood thinner, or aspirin. We reject the
argument. The district court’s factual determination that Tumbaga had failed to
show that Heparin or aspirin would have prevented or decreased the severity of the
second stroke was not clearly erroneous. Expert testimony established that
Heparin would have been dangerous for someone in Tumbaga’s condition.
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Although several experts testified to the contrary, the district court need not
explain its basis for rejecting such testimonies. See Hashimoto v. Dalton, 118 F.3d
671, 681-82 (9th Cir. 1997) (stating that the district court “is not required, in
making findings, to mention every item of evidence and either adopt or reject it”
and there is a presumption that the district court considered all of the evidence
(internal quotation marks omitted)). Further, Tumbaga failed to identify evidence
that aspirin would have prevented or ameliorated the second stroke.
Tumbaga argues that the district court misunderstood the causation element
of negligent failure to diagnose because it erroneously required that the medical
professional’s treatment of Tumbaga was also negligent. We conclude that any
such error was harmless. The district court’s finding that Heparin or aspirin would
not have prevented the second stroke or made it less severe effectively undercuts
Tumbaga’s only proffered theory as to how the failure to diagnose caused his
injury. See 28 U.S.C. § 2111 (providing that on appeal, the court shall render
judgment “without regard to errors or defects which do not affect the substantial
rights of the parties”).
Tumbaga contends that the district court erred in admitting the testimony of
Dr. Joe Eskridge, an interventional neuroradiologist, because he was not qualified
to testify regarding the standard of care expected of neurosurgeons in
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administering Heparin. The record reflects that Tumbaga failed to object to Dr.
Eskridge’s qualifications at trial, and thus, Tumbaga’s argument is waived. See
Skydive Ariz., Inc. v. Quattrocchi, 673 F.3d 1105, 1113 (9th Cir. 2012) (stating that
failure to challenge an expert’s qualifications at trial results in waiver of the right
to raise objections to the substance of expert testimony post-trial).
Further, Tumbaga contends that the district court clearly erred in relying on
Dr. Eskridge’s testimony to conclude that the failure to prescribe Heparin was not
negligent. This argument fails: Dr. Eskridge administered Heparin frequently, and
his testimony was corroborated by ample evidence admitted at trial.
The district court did not abuse its discretion in denying Tumbaga’s motion
to amend the judgment. Tumbaga argues that the court’s original decision gave
excessive weight to Dr. Eskridge’s testimony and inadequately considered that of
another expert. On this record, the district court did not clearly err in relying on
Dr. Eskridge’s testimony, nor was it required to address explicitly each item of
evidence. See Hashimoto, 118 F.3d at 681-82.
Tumbaga argues that the district court erred in ruling that, even if Alaska
accepted the loss-of-chance doctrine, under which a defendant is liable if his
conduct deprived the plaintiff of a chance for a better recovery, he would not
recover. We reject the argument. The district court properly found that
4
administration of Heparin or aspirin—the only identified “chance” for Tumbaga to
have avoided harm—would not have prevented the second stroke or reduced its
severity.
We reject Tumbaga’s argument that the district court abused its discretion by
preventing Dr. Jayashree Srinivasan from testifying to certain effects of the second
stroke.
AFFIRMED.
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