FILED
NOT FOR PUBLICATION
JUN 13 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MELVIN KORNBERG, No. 16-15464
Plaintiff-Appellant, D.C. No.
2:12-cv-01961-JAD-PAL
v.
UNITED STATES OF AMERICA; MEMORANDUM*
DEPARTMENT OF VETERANS
AFFAIRS,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted June 9, 2017**
Pasadena, California
Before: GRABER and MURGUIA, Circuit Judges, and DAVILA,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Edward J. Davila, United States District Judge for the
Northern District of California, sitting by designation.
Plaintiff Melvin Kornberg appeals from the district court’s judgment in
favor of Defendant, the United States of America, following a bench trial. Plaintiff
underwent a left-ear stapedectomy in February 2009 in an attempt to improve his
hearing. Plaintiff’s left chorda tympani nerve was damaged during the procedure,
leading to a partial loss of his sense of taste. Plaintiff claims that he was not given
sufficient information about the risks of the stapedectomy to allow him to give
informed consent to the operation. Because the stapedectomy was performed by
doctors acting within the scope of their employment with the United States,
Plaintiff sues the United States under the Federal Tort Claims Act. 28 U.S.C.
§§ 1346(b)(1), 2674.
1. Plaintiff first argues that the district court erred by admitting evidence of
the regular practices and routines of two of the doctors who treated Plaintiff and of
the medical center at which Plaintiff received treatment. The district court
reasoned that the habit-and-routine evidence tended to show that the doctors and
the medical center had provided sufficient information to Plaintiff. The court
noted that it was considering the evidence "under [Rule] 406" of the Federal Rules
of Evidence, which allows the admission of "[e]vidence of a person’s habit or an
organization’s routine practice . . . to prove that on a particular occasion the person
or organization acted in accordance with the habit or routine practice." Plaintiff
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did not object to the admission of this evidence at trial, so we review for plain
error. Bird v. Glacier Elec. Coop., Inc., 255 F.3d 1136, 1144–45 (9th Cir. 2001).
We find no plain error. The doctors testified that it was their regular practice to go
over the risks of surgery with patients at preoperative visits, and Plaintiff had such
a visit with the doctors four days before his surgery. One of the doctors testified
that she performed approximately 40 stapedectomies during her six years of
residency, and that in each preoperative visit with a stapedectomy patient she
"absolutely" went over the risk of damage to the chorda tympani nerve. The
doctors’ testimony concerning their typical practices was the type of testimony that
can be admitted under Rule 406. Karme v. Comm’r, 673 F.2d 1062, 1064 (9th Cir.
1982).
2. Plaintiff next argues that the district court erred in concluding that
Plaintiff gave informed consent to the surgery. "The law is clear in California that
the existence of informed consent is an issue of fact . . . ." Quintanilla v.
Dunkelman, 34 Cal. Rptr. 3d 557, 572 (Ct. App. 2005). Accordingly, we review
the district court’s conclusion that Plaintiff gave informed consent for clear error.
FDIC v. Craft, 157 F.3d 697, 701 (9th Cir. 1998) (per curiam). The district court
did not clearly err in finding that Plaintiff was informed of the risks of the
stapedectomy—including the risk that his left chorda tympani nerve might be
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damaged—in a way that allowed him to make an "intelligent choice" about
whether to undergo the procedure. Arato v. Avedon, 858 P.2d 598, 606–07 (Cal.
1993) (internal quotation marks omitted). The district court permissibly found that
much of Plaintiff’s testimony was not credible and that the doctors’ testimony was
credible. In view of those determinations and the routine-and-habit evidence, the
district court reasonably concluded that Plaintiff gave informed consent.
3. Because we hold that the district court did not err in finding that Plaintiff
gave informed consent, we need not address the issue of causation.
AFFIRMED.
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