FILED
NOT FOR PUBLICATION SEP 01 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SUSANNE EDGMON and GARRETT No. 10-35538
EDGMON,
D.C. Nos. 3:07-cv-00154-JWS
Plaintiffs - Appellants, 3:08-cv-00035-JWS
v.
MEMORANDUM *
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Argued and Submitted July 29, 2011
Anchorage, Alaska
Before: B. FLETCHER, KLEINFELD, and CALLAHAN, Circuit Judges.
Susanne Edgmon and her husband Garrett Edgmon appeal from the district
court’s judgment following a bench trial in favor of the government in this medical
malpractice action. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we
affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
After Susanne was diagnosed with and treated for ovarian cancer, the
Edgmons brought suit under Alaska law against the government pursuant to the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674.1 The Edgmons contended
that doctors at Kanakanak Hospital (“Kanakanak”) in Dillingham, Alaska,
negligently failed to diagnose Susanne’s ovarian cancer from at least October 2002
until January 2003, when she was diagnosed with ovarian cancer at a hospital in
Anchorage. They claim they incurred various damages as a result of the allegedly
late diagnosis. The district court determined that under the applicable Alaska
Statute, AS 09.55.540, the Edgmons had the burden to show that Kanakanak’s
doctors breached the applicable standard of care and that this breach was the
proximate cause of their injuries. Following a bench trial, the district court
concluded that the doctors at Kanakanak breached the applicable standard of care
by failing to perform an annual exam on Susanne consisting of (1) a pelvic exam;
(2) a Ca-125 blood test; and (3) a pelvic ultrasound in either December 2001 or
October 2002, but also found that the Edgmons had not shown by a preponderance
of the evidence that those tests would have detected Susanne’s ovarian cancer. In
addition, the district court rejected the Edgmons’ expert’s contention that
1
The parties are familiar with the facts of this case and we repeat them
here only as necessary.
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Susanne’s ovarian cancer would have been detected had the doctors at Kanakanak
referred her to a facility that had the equipment and capability to conduct a
computerized tomography scan (“CT scan”). Instead the district court accepted the
government’s experts’ contentions that a CT scan would not necessarily have
detected the cancer. Because the Edgmons had not shown that the tests would
have resulted in an earlier cancer diagnosis, the court concluded that they had
failed to prove that Kanakanak’s breach caused them any damages.
On appeal, the Edgmons contend that the district court erred: (1) by failing
to find that had the doctors at Kanakanak performed the three annual exam tests or
a CT scan at least in October 2002, Susanne’s ovarian cancer would have been
diagnosed earlier; and (2) assuming that the district court erred in its first
conclusion, then it also erred by failing to award the Edgmons damages.
The district court’s factual determinations are reviewed for clear error. Fed.
R. Civ. P. 52(a)(6); Yako v. United States, 891 F.2d 738, 745 (9th Cir. 1989). A
finding is clearly erroneous if the reviewing court, after reviewing “the entire
record, is left with a definite and firm conviction that a mistake has been made.”
Beech Aircraft Corp. v. United States, 51 F.3d 834, 838 (9th Cir. 1995). However,
“[a]n appellate court must be especially reluctant to set aside a finding based on the
trial judge’s evaluation of conflicting lay or expert oral testimony.” Id. (citations
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omitted). We are bound by our standard of review. Under that standard, we
cannot say that the district court clearly erred in its findings of fact or conclusions
of law. Fed. R. Civ. P. 52(a)(6); Yako, 891 F.2d at 745.
The Edgmons contend that the district court should have given more weight
to their evidence, particularly their expert’s proffered testimony. Here, the
Edgmons’ expert was an internist with no specialized training in oncology. The
government’s experts were both gynecologic-oncologists. While the Edgmon’s
expert testified that some of Susanne’s medical issues in October of 2002 were
symptoms of ovarian cancer and that a CT scan administered at that time would
have disclosed the cancer, the government’s experts reached the opposite
conclusion regarding both the symptoms and the CT scan. Where the Edgmons’
expert’s testimony regarding ovarian cancer symptoms differed from the
government’s experts’ testimony, the district court accepted the government’s
experts’ testimony.
The district court did not clearly err in giving greater weight to the
government’s experts’ opinions. See Beech Aircraft Corp., 51 F.3d at 838. Nor do
we find any clear error in the weight given by the district court to any of the other
evidence. Because the Edgmons have failed to show that the district court clearly
erred in finding that Susanne’s cancer would not have been detected had the annual
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exam tests or the CT scan been administered in 2002, it follows that they cannot
show damages from Kanakanak’s negligence as the statutory proximate cause
element is missing. See AS 09.55.540(a)(3) (“as a proximate result of . . . the
failure to exercise this degree of care the plaintiff suffered injuries that would not
otherwise have been incurred”).
AFFIRMED.
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