IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50686
Summary Calendar
DAVID JOHNSTON, Individually and as
representative of the Estate of
Richard J. Johnston; GLORIA JOHNSTON,
Plaintiff-Appellants,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-94-CV-110
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June 17, 1998
Before KING, HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:*
David and Gloria Johnston appeal the take-nothing judgment
dismissing their wrongful death claims, filed under the Federal
Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, based on
cardiac surgery performed on the decedent, Richard Johnston, by
the Government’s agents at the Brooke Army Medical Center. The
Johnstons alleged that the operating surgeon, Dr. Greg Bowman,
had negligently damaged Johnston’s phrenic nerves during the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 97-50686
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cardiac surgery, thereby paralyzing Johnston’s diaphragm and
causing his subsequent death. After conducting a bench trial,
the district court held that the Johnstons did not meet their
burden of proving that Dr. Bowman had caused Johnston’s death and
had breached the required standard of care.
We review the district court’s findings of fact for clear
error, and conclusions of law de novo. Fed. R. Civ. P. 52(a);
Hayes v. United States, 899 F.2d 438, 443 (5th Cir. 1990). After
reviewing the evidence, we do not have a definite and firm
conviction that the district court mistakenly found no negligence
on the part of the government’s agents. Consequently, we may not
overturn the district court’s ruling denying the Johnstons relief
on their negligence claims. See Anderson v. City of Bessemer
City, 470 U.S. 564, 573 (1985). The district court also did not
err in rejecting the Johnstons’ spoliation assertion since they
point to no facts showing that the government’s agents
intentionally or negligently destroyed evidence. See Brewer v.
Dowling, 862 S.W.2d 156, 159-60 (Tex. App. 1993, writ denied).
The district court’s refusal to apply the doctrine of res ipsa
loquitur was proper since laymen do not generally comprehend the
techniques of CABG surgery. See Haddock v. Arnspiger, 793 S.W.2d
948, 951 (Tex. 1990). Finally, our review indicates that the
district court did not misapply the FTCA and did not create a
subjective exception of unavoidable accident to the standard of
care for surgeons.
No. 97-50686
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The judgment of the district court is AFFIRMED.