Watson Ex Rel. Lewis v. United States

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
May 4, 2007
UNITED STATES COURT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

KA THERINE D OR OTH EA
W ATSO N, as guardian for Kortney
LaM on Lewis, an incapacitated
person,
No. 05-6262
Plaintiff-Appellant,

v.

U N ITED STA TES O F A M ER ICA,

Defendant-Appellee.

Appeal from the United States District Court
for the W estern District of Oklahoma
(D .C. No. CIV-04-537-C)

Submitted on the briefs: *

R. Thomas Seymour, C. Robert Burton, Scott A. Graham, Seymour Law Firm,
Tulsa, Oklahoma, for Plaintiff-Appellant.

John C. Richter, United States Attorney, Robert A Bradford, Assistant United
States Attorney, Oklahoma City, Oklahoma, for Defendant-Appellee.

Before O’BRIEN, B AL DOC K , and GORSUCH, Circuit Judges.

*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G ). The case is therefore ordered submitted without oral argument.
G O R SU CH, Circuit Judge.

Katherine Dorothea Watson, on behalf of Kortney LaM on Lewis, an

incapacitated former federal prisoner, sued under the Federal Tort Claims A ct,

alleging that the government responded negligently to M r. Lewis’s medical

condition and, as a result of its negligence, M r. Lewis suffered a brain

hemorrhage that left him severely and permanently disabled. After a three-day

bench trial, the district court found the government not liable. In this appeal, M s.

W atson presents, among other things, two legal questions related to the admission

of expert testimony: whether an expert witness who demurs w hen asked to

profess his expertise should, automatically and by virtue of that admission alone,

be precluded from testifying; whether all experts must always render written

reports as a precondition to being permitted to take the stand. For reasons

detailed below, we answer both questions in the negative and affirm the district

court’s judgment.

I

A

Viewing the facts in the light most favorable to the district court’s ruling,

as we are obliged to do, they indicate that, on August 6, 2001, Kortney LaM on

Lewis, a then-inmate at the Federal Correctional Institute in El Reno, Oklahoma

(“FCI El Reno”), underw ent brain surgery at Norman Regional Hospital after a

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fellow inmate fractured M r. Lewis’s skull during a fight the preceding evening.

See M em. Op. at 2, 5. Following three days of recovery, M r. Lewis’s doctor at

Norman Regional Hospital discharged him as “neurologically normal except for

mild speech problems.” Id. at 2. M r. Lewis then spent approximately a week in

Parkview Hospital, located closer to the prison in El Reno, where he received

speech and physical therapy. See id. at 2-3. Ultimately, Parkview Hospital also

discharged M r. Lewis, this time to the medical team at FCI El Reno with an

instruction that he continue speech and occupational therapy; the hospital

suggested no need “for further observation, hospitalization, nursing care, or

immediate follow-up.” Id. at 3; see also id. at 4 (“[T]he Parkview discharge

instructions lack any instruction for further hospitalization or observation.”).

M r. Lewis thus returned to FCI El Reno, where prison officials placed him

in the special housing unit in which medical personnel made daily rounds. Id. at

3-4. M r. Lewis did not request any medical assistance during his initial days

there, although he “was still slurring his speech and required further speech

therapy.” M em. Op. at 4-5. On the evening of August 18, 2001, while escorting

M r. Lewis back from the showers to his cell “a few minutes before 7:25 p.m.,”

according to the district court, prison guards “noticed that Lewis was suffering

from worsened slurred speech, difficulty completing sentences, and trouble

walking.” Id. at 5. Nonetheless, the guards did not notify medical personnel at

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the prison’s health services unit (“H SU”) and instead simply placed M r. Lewis

back in his cell. See id.

Around 7:25 p.m., M r. Lewis called for help. Responding guards found

him lying unconscious on his cell floor; they immediately summoned the H SU’s

physician’s assistant, who arrived within two minutes and transferred M r. Lewis

to the HSU. See id. at 6. At 7:42 p.m., following the prison’s policy, the

physician’s assistant called the closest ambulance service to the prison, and the

district court found that M s. W atson “did not establish that [the physician’s

assistant] could have called for an ambulance any sooner than he did at 7:42 p.m.”

Id. The ambulance arrived at the prison gate within three or four minutes, cleared

security after approximately ten minutes more, and arrived at the HSU at

7:56 p.m. See id. The district court found that “[t]his was the quickest any

ambulance crew could have reached Lewis to begin transport to a hospital for

services.” M em. Op. at 6. The ambulance crew then took ten to fifteen minutes

to prepare M r. Lewis for transport and several additional minutes to clear security

at the prison before departing FCI El Reno at 8:19 p.m.; the district court found

no evidence that any ambulance service, air or ground, could have left the prison

any sooner. Id. at 7.

The private ambulance crew independently decided, without direction from

the government, to take M r. Lewis to the two-minute-away Parkview Hospital,

where they arrived at 8:21 p.m, as opposed to another nearby alternative, the

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twenty-minute-away M ercy Hospital; the district court found no persuasive

evidence that sending M r. Lewis to another hospital such as M ercy would have

resulted in a more favorable outcome. Id. at 7. “Indeed, the more compelling

evidence indicated that if [M r.] Lewis had been sent to M ercy via ambulance, he

likely would not have survived.” Id. Forty-two minutes after arriving at

Parkview Hospital and following a CT scan in which the doctors found a large

intracerebral hematoma, medical personnel administered to M r. Lewis the drug

M annitol, 1 which reduced the pressure on his brain. See id. At 9:54 p.m.,

Parkview Hospital then transferred via ambulance the stabilized M r. Lewis to

Norman Regional Hospital for neurosurgery. Id. at 7-8. Sadly, M r. Lewis left

that hospital with severe impairments to his mental faculties. See M em. Op. at 8

(describing M r. Lewis as having left the hospital in a so-called “persistent

vegetative state”).

1
M annitol is “a 6-carbon sugar alcohol formed by reduction of mannose or
fructose and widely distributed in plants and fungi. Official preparations,
administered intravenously, are used as an osmotic diuretic in the prophylaxis of
acute renal failure, in the evaluation of acute oliguria, and for reducing
intraocular and cerebrospinal fluid pressure and volume.” Dorland’s Illustrated
M edical Dictionary 1055 (29th ed. 2000); see also Stedm an’s M edical Dictionary
1062 (27th ed. 2000) (“The hexahydric alcohol, widespread in plants, derived by
reduction of fructose; used in renal function testing to measure glomerular
filtration, and intravenously as an osmotic diuretic. SYN manna sugar,
mannite.”).

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 B

On April 29, 2004, M s. W atson, as guardian to M r. Lewis, sued the

government under the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1)

(“FTCA”), claiming, inter alia, that the government acted negligently in its

response to M r. Lewis’s medical condition. See Aplt. App. at 13-14, 22-23. On

June 20, 2005, the United States District Court for the W estern District of

Oklahoma held a three-day bench trial, after which the court found no legal basis

for imposing liability. See M em. Op. at 1; Aplt. App. at 10-11.

Citing the discretionary-function exemption to the government’s waiver of

sovereign immunity, see 28 U.S.C. § 2680(a), the district court found that the

“decision by FCI El Reno to contact Parkview Ambulance Service for assistance

when inmates are found unresponsive and in need of medical care above that able

to be provided at FCI El Reno is governed by the discretionary function.” M em.

Op. at 12. In the alternative, the district court held that the government had not

acted negligently in its response to M r. Lewis’s condition and that, even if the

prison medical team had been negligent, its conduct “was not the proximate cause

of Lew is’s intracerebral hemorrhage or his resultant loss of function.” See id. at

13-14. This is so, the district court found, because M r. Lewis was not

symptomatic until immediately before the hemorrhage, the hemorrhage was

sudden and violent, prison officials did not unnecessarily delay summoning or

admitting help, and prison officials had no role whatsoever in the medical

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decision to transport M r. Lewis to Parkview or M ercy Hospital. See id. at 10-11.

Accordingly, even “under the best of circumstances,” the district court found that

M r. Lewis would not have received the necessary treatment (that is, M annitol or

neurosurgery) before permanent brain damage occurred. Id. at 12.

II

At trial, and over repeated objection of M s. W atson, the government sought

and obtained leave under Fed. R. Evid. 702 to present expert testimony by Dr.

Thomas Fred Goforth, the clinical director at the United States Department of

Justice’s Bureau of Prisons’ Federal Transfer Center in Oklahoma City,

Oklahoma. Dr. Goforth testified that, in his opinion, the medical team at FCI El

Reno at all times acted professionally and competently in the treatment of M r.

Lew is. On appeal, M s. W atson contends that the admission of D r. Goforth’s

testimony amounted to an abuse of discretion because (i) at his deposition, Dr.

Goforth seemed to deny possessing a relevant expertise; and (ii) Dr. Goforth

failed to prepare an expert report prior to taking the stand. W e address these

contentions in turn.

A

W hat to do w hen an expert witness says he isn’t really so expert? This case

presents the rather unusual circumstance of a putative expert who seems to

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disclaim his expertise under oath. 2 M s. W atson would have us hold the

government to its witness’s admission and deem Dr. Goforth unqualified as a

matter of law. But the Federal Rules of Evidence assign to the district court the

job of deciding whether an individual is sufficiently qualified to testify as an

expert, by virtue of training and experience and based on the facts and

circumstances of each case, subject of course to a tailored review in this court.

See Fed. R. Evid. 702; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S.

579, 589-95 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-49 (1999);

Gen. Elec. Co. v. Joiner, 522 U.S. 136, 139 (1997); Bitler v. A.O. Smith Corp.,

400 F.3d 1227, 1232 (10th Cir. 2004) (explaining that “[w]e review for abuse of

discretion the manner in w hich the district court exercises its Daubert

‘gatekeeping’ role in making decisions whether to admit or exclude testimony.

W e will not, however, disturb a district court’s ruling absent our conviction that it

is arbitrary, capricious, whimsical, manifestly unreasonable, or clearly

erroneous.” (internal citations omitted)).

2
W hen initially asked at his deposition “[d]o you consider yourself an
expert witness as you are sitting here today?,” Dr. Goforth replied, “[n]o, no.”
Aplt. App. at 68. Later, however, Dr. Goforth warmed to the idea, responding:
“Let me rephrase that. I certainly feel like I may be a little bit more expert than
someone who has no prison experience as far as healthcare.” Id. Elsewhere, he
testified: “W hen we are talking about me, I am talking about meeting the
standard of care in the community.” Id. at 84; see also id. (“I don’t know that Joe
Schmidt knows what goes on in a prison, and I do.”); id. at 85 (“And I have a
feeling they don’t know much about what happens in a prison.”).

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 W hile a witness’s self-estimation must surely factor into the district court’s

decision whether or not to receive his testimony, it is not necessarily dispositive

under the Federal Rules of Evidence or our received precedents. And tempting

though it might be to supplement our traditional case- and fact-specific inquiry

with M s. W atson’s automatic rule that no witness who denies having the requisite

expertise may testify, doing so would risk turning a substantive and serious

examination by a district court judge about a proffered witness’s suitability into a

game of gotcha, allowing lawyers to set cross-examination traps for unwary

individuals who do not make their living testifying in court but who nonetheless

may have a very great deal to offer fact finders. W hile overly modest expert

witnesses may not be exactly an everyday sort of problem in our legal system,

neither can we ignore the prospect of mistakenly excluding a witness who really

is expert but simply too demure to trumpet his or her qualities under cross-

examination; it would hardly benefit the legal system to exclude from the stand

self-deprecating individuals w ho rarely testify but have the expertise to do so in

favor of those who are more extravagant and savvy to the legal system or who

may make their living testifying in our courts. Our views on this score find echos

in the holding of a sister circuit, which some time ago in a case involving another

government employee who was not a professional testifier explained that,

“[n]either the Bureau of M ines nor the mine inspector himself may have thought

that he was or should be an expert. But it is the trial judge, and not the w itness

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. . . , who has the responsibility and discretion to determine whether a witness is

qualified as an expert.” Lolie v. Ohio Brass Co., 502 F.2d 741, 746 (7th Cir.

1974).

Applying our traditional abuse of discretion test to the facts and

circumstances of this particular case, we are able to perceive no reversible error

in the district court’s decision to find Dr. Goforth to be an expert in health care in

federal prisons, his modesty notwithstanding. Indeed, besides pursuing her

argument for automatic-exclusion-by-virtue-of-admission, M s. W atson herself

mounts no challenge to Dr. Goforth’s qualification or the merits of the district

court’s decision to receive his testimony. The undisputed facts establish that Dr.

Goforth earned a medical degree from the University of Oklahoma; completed a

family-practice residency at the University of Oklahoma; is board certified in

family practice; has advanced training in cardiac, pediatric, and advanced trauma

life support; served for four years as the clinical chief and emergency room

director at Tinker Air Force Base, where he supervised the medical team; and

served for five years as the medical director of the Federal Transfer Center. See

Aplt. App. at 248-49 (outlining Dr. Goforth’s credentials). Given this evidence in

the record before us regarding Dr. Goforth’s qualifications and the absence of any

reason supplied by M s. W atson to think Dr. Goforth unfit, we are unable to say

that the district court abused its discretion in holding that Dr. Goforth’s

credentials demonstrated sufficient “knowledge, skill, experience, training, or

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education” in the area of health care in federal prisons to be of use to the jury.

See Fed. R. Evid. 702. 3

B

M s. W atson contends that the district court also erred by failing to require

Dr. Goforth to prepare and present an expert report before taking the stand. The

rule of law in question, Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure,

provides in pertinent part:

Except as otherwise stipulated or directed by the court, this
disclosure shall, with respect to a w itness who is retained or
specially employed to provide expert testimony in the case or whose
duties as an employee of the party regularly involved giving expert
testimony, be accompanied by a written report prepared and signed
by the w itness.

3
In a different vein, M s. W atson contends that Dr. Goforth should have
been excluded because he additionally admitted that he did not know the
“national” standard of care by which plaintiff’s negligence claim was to be
measured in this case. See 76 Okla. Stat. § 20.1 (2002). Because M s. W atson did
not argue this point in the district court, however, we are obliged to review it only
under our plain error standard. See Fed. R. Civ. P. 51(d)(2); see also, e.g.,
M cKenzie v. Benton, 388 F.3d 1342, 1350-51 (10th Cir. 2004); M acsenti v.
Becker, 237 F.3d 1223, 1230-34 (10th Cir. 2001) (a party’s failure to raise an
objection at trial deprives the proponent “the opportunity to offer other supporting
proof,” disadvantages the trial judge by “not alert[ing] to the need of stating
Daubert/Kumho findings and analysis,” and impairs appellate review “due to the
inadequacy of the record”). Neither do we see such error – that is error impairing
M s. W atson’s substantial rights and the integrity of judicial proceedings –
because Dr. Goforth did specifically and expressly testify about the standard of
care in the local community and the parties have identified for us no way in which
the relevant community standards of care differed in any material respect from
national standards.

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Fed. R. Civ. P. 26(a)(2)(B) (emphasis added). W hile the Rule focuses on those

who must file an expert report, by exclusion it contemplates that some persons are

not required to file reports and that these include individuals who are employed

by a party and do not regularly give expert testimony. It is undisputed that Dr.

Goforth meets exactly this description; accordingly, we, like the district court,

can discern no violation of the applicable Rule.

M s. W atson replies to this analysis less with a textual argument than a

policy one; to her, it is grossly unfair to allow a party to call an expert to testify

without first providing advance notice of his or her opinions. But there exist

policy arguments on both sides of this debate, and the rulemakers, with the

approval of Congress, have sought to balance those interests in Rule 26. On one

hand, the rulemakers were clearly concerned about the fulsome and efficient

disclosure of expert opinions when they adopted the report requirement for most

cases and experts. 4 On the other hand, it is apparent that the rulemakers did not

think reports should be required in all cases and seemed concerned, for example,

about the resources that might be diverted from patient care if treating physicians

were required to issue expert reports as a precondition to testifying:

4
And, to be sure, the requirement of an expert report has advantages. See,
e.g., Ronald N. Boyce, The New Federal Discovery Rules: 26(a)(1)&(2)-A Big
Step in the Right Direction, 3 Utah Bar. J. 16, 16-19 (1998) (comparing Rule
26(a)(2) report requirement with prior regime of propounding interrogatories to
experts and contending that the current regime shortens depositions and reduces
the cost of litigation).

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 For convenience, this rule and revised Rule 30 continue to use the
term “expert” to refer to those persons w ho will testify under Rule
702 of the Federal Rules of Evidence with respect to scientific,
technical, and other specialized matters. The requirement of a
written report in paragraph (2)(B), however, applies only to those
experts who are retained or specially employed to provide such
testimony in the case or whose duties as an employee of a party
regularly involve the giving of such testimony. A treating physician,
for example, can be deposed or called to testify at trial without any
requirement for a written report. By local rule, order, or written
stipulation, the requirement of a written report may be waived for
particular experts or imposed upon additional persons w ho will
provide opinions under Rule 702.

Fed. R. Civ. P. 26(a)(2)(B), Adv. Comm. Notes (emphasis added). W hatever

one’s views of M s. W atson’s wish that all experts be required to supply written

reports, it is our office to apply, not second guess, congressionally approved

policy judgments, and that judgment, delineated by the plain terms of Rule 26, did

not include a requirement of a report in this case. If a different balance is to be

struck with respect to the costs and benefits of expert reports, it must be

accomplished through the mechanisms approved by Congress. See 28 U.S.C.

§§ 2071-74.

Neither are w e able to disregard that the Federal Rules of Civil Procedure

approved by Congress do supply other mechanisms, besides formal reports, for

extracting the views of an expert witness like Dr. Goforth; sandbagging is not

necessarily inevitable. Generally all witnesses, regardless of their status, must be

identified, w ith their contact information, in a party’s Rule 26(a)(1)(A)

disclosures. M oreover, parties must also disclose, inter alia, a copy or location of

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“all documents, electronically stored information, and tangible things that are in

possession, custody, or control of the party and that the disclosing party may use

to support its claims or defenses, unless solely for impeachment.” Fed. R. Civ. P.

26(a)(1)(B). A party’s failure to comply with these provisions, including with

respect to its employees who (like Dr. Goforth) serve as expert witnesses, can

result in the exclusion of witnesses and other sanctions. Fed. R. Civ. P. 37(c)(1).

Likew ise, all witnesses are subject to deposition, individual document demands,

and other discovery the court deems necessary and appropriate. And, of course,

as the Advisory Committee Notes indicate, see supra p. 13, district courts are

empowered to go above and beyond what the Rules prescribe and, in appropriate

circumstances, may require expert reports even from individuals such as D r.

Goforth. 5

5
Our rejection of M s. W atson’s argument on this score comports with how
other circuits have addressed similar challenges, see, e.g., Fielden v. CSX
Transp., Inc., --- F.3d. ---, 2007 W L 1028941, at *1-6 (6th Cir. 2007); M usser v.
Gentiva H ealth Servs., 356 F.3d 751, 756-57 (7th Cir. 2004), as well as with how
commentators have read Rule 26(a)(2)(B), see, e.g., 10 Fed. Proc., L.Ed. § 26:37;
Boyce, 3 Utah Bar. J. at 18.

Relatedly but separately, M s. W atson contends that she was “[a]t no time
prior to trial . . . given the opportunity to examine on, whatever D r. Goforth’s
‘expert’ opinions were.” Aplt. Op. Br. at 49-50. Given that M s. W atson did not
raise this concern before the district court, we may once again review only for
plain error. See supra p. 11, n.3. And we find none for, in fact, M s. W atson not
only had the opportunity to examine Dr. Goforth’s opinions, she actually deposed
him with full knowledge that the government intended to call him as an expert
witness, and she questioned him about his background; his prior knowledge of
(continued...)

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 III

M s. W atson also challenges an array of the district court’s factual findings

supporting its conclusion that the government did not act negligently in its care of

M r. Lewis. But every trial is replete with conflicting evidence, and in a bench

trial, it is the district court, which enjoys the benefit of live testimony and has the

opportunity firsthand to weigh credibility and evidence, that has the task of

sorting through and making sense of the parties’ competing narratives. Precisely

because we are so removed from the action of trial, we will disturb a district

court’s factual finding only when it is clearly erroneous – that is, a finding must

be more than possibly or even probably wrong; the error must be pellucid to any

objective observer. See Holdeman v. Devine, 474 F.3d 770, 775-76 (10th Cir.

2007) (citing Keys Youth Servs., Inc. v. City of Olathe, 248 F.3d 1267, 1274 (10th

Cir. 2001)).

M s. W atson first challenges the district court’s finding that the government

lacked notice of the need to observe closely M r. Lewis for post-surgical

complications upon his return to FCI El Reno. In aid of this argument, she

represents that one of the government’s experts, “Dr. [Don Forrest] Rhinehart[,]

5
(...continued)
M r. Lewis’s case (including his review of medical charts, other medical opinions,
and prior depositions); his conversations with A ssistant United States Attorneys;
appropriate standards of care; and the alleged breaches thereof. See Aplt. App. at
52-94.

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and Plaintiff’s expert, Dr. [John] Coates, testified that Lewis needed observation

on August 18, 2001, to meet the standard of care.” A plt. Op. Br. at 4. As it

happens, however, Dr. Rhinehart’s testimony was a bit more muddled than M s.

W atson suggests, 6 and, even assuming both Dr. Coates and Dr. Rhinehart testified

exactly as she represents, the government presented contrary evidence.

Specifically, the government cited two hospital discharge reports and testimony

from other w itnesses (Drs. M alcher and Goforth), all of w hich suggested that M r.

Lewis did not require observation upon his return to FCI El Reno; showed him to

be neurologically normal except for mild speech problems; and indicated that he

was discharged with the instruction only that he continue speech and occupational

therapy, with no need for further observation, hospitalization, nursing care, or

immediate follow-up. Given that competent evidence does indeed support the

district court’s factual findings in this case, we are unable to conclude that M s.

W atson has met her burden of showing clear error merely by pointing to

competing testimony.

Second, M s. W atson asserts that the district court erred when it found that

the evidence failed to support a finding that the government was required to stock

6
Dr. Rhinehart was asked: “If you’re putting them there for observation,
you can’t have observation if you don’t know what you’re looking for; right?”;
and responded: “Under that scenario, yes, sir.” Trial Tr. at 424:6-9. W e have
not been pointed to testimony, however, that the government placed M r. Lewis in
the special housing unit for observation.

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M annitol at FCI El Reno to comply with the prevailing standard of care; M s.

W atson represents to us that her view is confirmed by the testimony of both

parties’ experts and certain regulations of the Bureau of Prisons. But M s. W atson

fails to point us to any evidence in the record to support her representations, and

it is not our role to mine a lengthy trial record in an unaided hunt for evidentiary

nuggets to support a party’s arguments. Cf. Gross v. Burggraf Constr. Co., 53

F.3d 1531, 1546 (10th Cir. 1995) (“W ithout a specific reference, we will not

search the record in an effort to determine whether there exists dormant evidence

which might require submission of the case to a jury.” (internal quotation

omitted)). M oreover, there is at least some record evidence suggesting that,

contrary to her assertion, Bureau of Prisons regulations did not require FCI El

Reno to stock M annitol. See Trial Tr. at 177:2-10 (outlining testimony that FCI

El Reno stocked only medications actively used); see also id. at 329:3-9

(outlining testimony that M annitol was not a medication normally administered

outside of a hospital setting). And, again contrary to M s. W atson’s assertion, the

government’s experts, Drs. Goforth and Rhinehart, expressly testified that FCI El

Reno did not violate the standard of care by failing to stock M annitol. 7

7
See Trial Tr. at 307:19, 328:19-22 (D r. Goforth’s testimony: “Q . All
right. Let’s talk a little bit about M annitol for a second. W as it standard of care
in 2001 for an ambulatory clinic such as FCI El Reno to stock M annitol? A.
No.”); see also id. at 394:12, 408:16-21 (Dr. Rhinehart’s testimony: “Q. Are you
aware if FCI El Reno has M annitol or does not have M annitol? A. It’s my
(continued...)

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 To be sure, M s. W atson cites to Dr. Coates, her own expert, who stated that

FCI El Reno should have stocked M annitol to meet the standard of care. See

Trial Tr. at 3, 5 (identifying Dr. Coates as M s. W atson’s w itness); see also Aplt.

App. at 1965 (citing declaration of Dr. Coates in which he stated that FCI El Reno

should have stocked M annitol). But it is hardly clear error for the district court to

credit D rs. Rhinehart’s and Goforth’s expert testimony rather than Dr. Coates’s.

Indeed, making sense of the battle of experts is the essence of most medical

malpractice trials and M s. W atson gives us no reason to think, as she must, that

any reasonable fact finder would have to discredit the government’s experts in

favor of her own.

Third, M s. W atson asserts that the district court erred in finding that the

government’s failure to summon an air ambulance with M annitol on board was

not required by the applicable standard of care; she points us to the testimony of

Drs. Rhinehart, Goforth, and M alcher, who, she tells us, all testified that use of an

air ambulance was required. But the record, again, does not support – and even

tends to undermine – her assertion. Dr. Rhinehart testified only that “depending

on distance,” it is the standard of care to transport a patient via air ambulance,

Trial Tr. at 427:1-10; he never stated that the distances in this case made an air

7
(...continued)
understanding they do not have. Q. Do you believe that [this] is a breach of the
standard of care? A. No.”).

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ambulance necessary or even appropriate. D r. Goforth testified that the failure to

employ air ambulances at FCI El Reno, “when necessary,” would breach the

standard of care, Trial Tr. at 346:1-6, but M s. W atson points us to no evidence

suggesting that Dr. Goforth considered it “necessary” to transport via air

ambulance M r. Lew is given the facts and circumstances of this case. Finally, Dr.

M alcher admitted that it is the standard of care to call for an air ambulance “if

that is in the patient’s best interest,” Trial Tr. at 81:14-20, but she (like the

others) never testified that summoning an air ambulance in this case would have

been in M r. Lewis’s best interest.

Not only is M s. W atson’s argument unsupported on its own terms, the

district court received ample evidence from other sources that an air ambulance

was not necessary or in M r. Lewis’s best interest. Parkview Hospital, which sent

a ground ambulance, was the closest hospital and only two minutes from FCI El

Reno. One of M s. W atson’s experts, Dr. Coates, twice indicated that a land

ambulance would have been “fine.” Trial Tr. at 203:5, 204:5-7. And M s. W atson

presented no evidence that an air ambulance would have transported M r. Lewis

more quickly. Given all this, we can hardly hold that the district court committed

reversible error in finding that the use of an air ambulance was unnecessary to

comply with the applicable standard of care. 8

8
M s. W atson’s remaining factual challenges are no more availing. For
example, she asserts that the district court erred in finding that M r. Lew is’s
(continued...)

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 * * *

For the foregoing reasons, we hold that the district court did not err in

receiving the testimony of Dr. Goforth, in declining to require him to produce an

expert report as a precondition to testifying, or in the findings it made in aid of its

conclusion that the government did not act negligently in its care of M r. Lewis. 9

Accordingly, the judgment of the district court is

Affirmed.

(...continued)
hemorrhage was “sudden and violent,” occurring very near to 7:25 p.m. on
August 18, 2001, rather than a “slow bleed” that might have been noticeable for
some time such that the damage done to M r. Lewis might have been anticipated.
But in aid of her argument along these lines, M s. W atson once again merely
points us to the fact that the parties presented dueling expert testimony on this
issue; the district court simply credited the government’s expert witness over her
own on this score, and M s. W atson gives us no reason to suppose its decision to
do so was clearly erroneous. Similarly, M s. W atson asserts that the government
violated the standard of care by failing to have the ambulatory team bring
M annitol to the prison, where it could have been rushed to M r. Lewis. Yet again,
however, M s. W atson points us to no evidence in the record that FCI El Reno’s
failure to order the ambulance trauma team to bring M annitol violated the
applicable standard of care. W ithout such direction from her, we are unable to
find clear error on the part of the district court.
9
Because we affirm the district court’s holding that the government was
not negligent in its care of M r. Lewis, we need not pass on the legal sufficiency
of the two other, alternative bases on which the district court rested its judgment
– namely, with respect to proximate causation or the discretionary-function
exemption to the government’s waiver of sovereign immunity, see 28 U.S.C.
§ 2680(a).

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