                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 06-2911
                                 ________________

Fernando Chapa, Individually and           *
as Guardian of Dakota C. Fuller, a         *
minor; Valerie Chapa,                      *
Individually and as Guardian of            *
Dakota C. Fuller, a minor,                 *
                                           *
             Appellants,                   *      Appeal from the United States
                                           *      District Court for the
      v.                                   *      District of Nebraska.
                                           *
United States of America,                  *
                                           *
             Appellee.                     *

                                 ________________

                             Submitted: March 13, 2007
                                 Filed: August 16, 2007
                                ________________

Before COLLOTON, BEAM and GRUENDER, Circuit Judges.
                        ________________

GRUENDER, Circuit Judge.

       Fernando and Valerie Chapa, individually and as guardians of Dakota C. Fuller
(“Dakota”), sued the United States of America alleging that it was legally responsible,
through its employees, for permanent injuries Dakota suffered after being shaken by
his biological father. The Chapas alleged that three physicians at a United States
military hospital, including Dr. Richard F. Garri, were negligent and caused Dakota’s
injuries. After a bench trial, the district court1 held that the two other physicians did
not deviate from the generally recognized medical standard of care but that Dr. Garri’s
failure to review Dakota’s medical records during an emergency room visit constituted
a deviation from the medical standard of care. However, the district court held that
Dr. Garri’s deviation was not the proximate cause of Dakota’s injuries and entered
judgment in favor of the United States. The Chapas only challenge the district court’s
decision that Dr. Garri’s deviation was not the proximate cause of Dakota’s injuries.
For the reasons discussed below, we affirm.

I.    BACKGROUND

       Dakota was born on August 3, 2001. Medical personnel at Ehrling Bergquist
Hospital (“Bergquist”) on the Offutt Air Force Base in Nebraska treated Dakota on
six occasions between his birth and December 2, 2001. The Chapas base this suit on
four of these visits. On September 25, 2001, Dakota’s parents brought him to the
emergency department at Bergquist after his mother accidentally gave him a ten-fold
overdose of Sudafed. Dr. Lyle J. VanderSchaaf called the poison control center,
observed Dakota for two hours, and released him to his parents. On October 5, 2001,
Dakota’s parents took him for a routine, well-baby check-up. Nurse Practitioner Lynn
Murphy inquired as to the cause of a small bruise on Dakota’s forehead. His parents
stated that most likely a toddler at Dakota’s daycare inflicted the bruise. On October
12, 2001, Dakota’s father brought him to the emergency department, claiming that he
had jerked Dakota by the left arm while trying to lift him. Dr. Garri diagnosed Dakota
with “nursemaid’s elbow.” Dakota’s father told Dr. Garri that Dakota had no medical
history, and Dr. Garri did not request Dakota’s medical records. After an x-ray of
Dakota’s left arm did not detect any fractures, Dr. Garri released Dakota to his father.




      1
       The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.

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       On December 2, 2001, Dakota’s father again brought Dakota to the Bergquist
emergency department. Upon his arrival at the hospital, Dakota had no pulse and was
not breathing. After the emergency department personnel resuscitated and stabilized
Dakota, they transferred him to Children’s Hospital of Omaha (“Children’s
Hospital”). At Children’s Hospital, the physicians diagnosed Dakota as having
“shaken-baby syndrome” and determined that Dakota suffered brain trauma the day
before arriving at Children’s Hospital. As a result of these injuries, Dakota has severe
permanent brain damage, blindness and seizures.

       In connection with the events of December 2, 2001, Dakota’s father pled no
contest to a charge of attempted felony child abuse and received eighteen months’
probation. Fernando and Valerie Chapa, Dakota’s grandparents, took custody of
Dakota upon his release from Children’s Hospital and later adopted him. In August
2004 the Chapas filed a complaint against the United States under the Federal Tort
Claims Act, 28 U.S.C. §§ 2671 et seq., for negligence, carelessness and medical
malpractice for the failure of the Bergquist medical personnel to diagnose and treat
child abuse.

        During a bench trial, Dr. John A. Tilelli, the Chapas’ expert medical witness,
testified that, in his opinion, the care provided during all three of Dakota’s visits to
Bergquist before the December 2, 2001 incident fell below the generally recognized
medical standard of care. Specifically, with respect to the treatment by Dr. Garri, Dr.
Tilelli testified that all medical practitioners have a duty to review all medical data
available to them, and Dr. Garri deviated from this medical standard of care. Dr.
Donald Uzendoski, the United States’ expert medical witness, testified that while a
patient’s medical history must be obtained, there is generally no requirement to obtain
the entire medical record when a patient visits the emergency department.

       The district court also considered evidence concerning whether Dr. Garri’s
failure to review Dakota’s records was the proximate cause of Dakota’s injuries. Dr.

                                          -3-
Vandershaaf testified about the standard procedure for reporting suspected child abuse
at Bergquist. A physician normally contacts the Family Advocacy Office (“Family
Advocacy”) with his or her suspicions of child abuse. Based on the severity of the
report, Family Advocacy personnel either report to the emergency department
immediately or schedule a consultation within one week. Although the record does
not reflect that Dr. Tilelli ever worked with Family Advocacy, he testified “based on
a reasonable degree of medical certainty” that reporting Dakota’s previous injuries to
Family Advocacy would have prevented his latest injuries and that if there had been
effective intervention, Dakota’s father “more likely than not” would not have shaken
Dakota on December 2, 2001. In addition, Mrs. Chapa testified that if she had known
of Dakota’s three hospital visits and had suspected child abuse, she would have “done
everything in her power to have taken care of [him]” and sought custody of him. The
district court, however, excluded Mrs. Chapa’s testimony, sustaining the United
States’ relevance objection.

       The district court held that all medical personnel who treated Dakota acted
within the generally recognized medical standard of care, with the exception of Dr.
Garri in connection with Dakota’s elbow injury. The district court found that Dr.
Garri did not act within the medical standard of care when he failed to request and
review Dakota’s medical records which were located 100 yards from the emergency
department and which he could have retrieved in five minutes. Given the ready
accessibility of the records and the nature of the injury for which Dr. Garri treated
Dakota, the district court found that Dr. Garri deviated from the medical standard of
care in that respect.

       The district court then concluded that the Chapas failed to prove by a
preponderance of the evidence that Dr. Garri’s failure to review Dakota’s records was
the proximate cause of Dakota’s injuries because they did not present evidence that
Dr. Garri would have done anything beyond reporting any suspicion to Family
Advocacy or that, if reported, Family Advocacy would have taken steps sufficient to

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prevent Dakota’s injuries. Without any testimony as to what course of action Family
Advocacy would have taken after receiving a report from Dr. Garri, the district court
held that there was only “wishful speculation” as to whether any action by Family
Advocacy would have prevented the injuries. Finding that the Chapas did not prove
proximate cause by a preponderance of the evidence, the district court entered
judgment for the United States. The Chapas then filed a motion for a new trial or, in
the alternative, to alter or amend the judgment, arguing that Dr. Tilelli’s testimony
satisfied their burden of proof. The district court denied this motion and reaffirmed
its holding.

II.   DISCUSSION

       On appeal, the Chapas argue that the district court erred in utilizing the “but
for” test in its proximate cause determination and in concluding that the Chapas did
not satisfy their burden of proving proximate cause. Because of this incorrect holding,
the Chapas argue that the district court improperly denied their post-trial motion for
a new trial or, in the alternative, to alter or amend the judgment. We review a district
court’s denial of this post-trial motion for an abuse of discretion. Dairy Farmers of
Am., Inc. v. Travelers Ins. Co., 391 F.3d 936, 943 (8th Cir. 2004). “An abuse of
discretion will only be found if the district court’s judgment was based on clearly
erroneous factual findings or erroneous legal conclusions.” Margolies v. McCleary,
Inc., 447 F.3d 1115, 1125 (8th Cir. 2006) (quotation omitted). For the following
reasons, we find that the district court did not abuse its discretion in denying the
Chapas’ post-trial motion.

      A. Proximate Cause Test

      When a plaintiff alleges professional negligence in a medical malpractice claim,
he must “demonstrate the generally recognized medical standard of care, that there
was a deviation from that standard by the defendant, and that the deviation was the

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proximate cause of the plaintiff’s alleged injuries.” Snyder v. Contemporary
Obstetrics & Gynecology, 605 N.W.2d 782, 791 (Neb. 2000).2 The plaintiff must
prove each element by a preponderance of the evidence. Id. Since this appeal only
concerns the district court’s determination that Dr. Garri’s deviation from the
generally recognized medical standard of care was not the proximate cause of
Dakota’s injuries, we need not address the first two elements. Instead, we must
determine whether the Chapas proved by a preponderance of the evidence that Dr.
Garri’s deviation was the proximate cause of Dakota’s injuries.

       Under Nebraska law, courts use one of two tests when analyzing proximate
cause. Under the “but for” test, a plaintiff establishes proximate cause when he proves
“(1) that without the negligent action, the injury would not have occurred, commonly
known as the ‘but for’ rule; (2) that the injury was a natural and probable result of the
negligence; and (3) that there was no efficient intervening cause.” Stahlecker v. Ford
Motor Co., 667 N.W.2d 244, 254 (Neb. 2003). Nebraska courts use another test, the
“substantial factor” test, when the “but for” test allows each defendant to escape
responsibility because “the conduct of one or more others would have been sufficient
to produce the same result.” Reimer v. Surgical Servs. of the Great Plains, P.C., 605
N.W.2d 777, 781 (Neb. 2000) (quotation omitted).

          [T]he substantial factor test harmonizes with Nebraska law regarding
          proximate cause when multiple causes act to produce a single injury or
          when the active negligence of a third person is also a substantial factor
          in bringing about the harm . . . because when there are multiple causes
          to an injury, liability could never be established under the standard [“but
          for”] proximate cause instruction.


      2
       When a plaintiff brings a claim against the United States under the Federal Tort
Claims Act, the controlling law is that of the state in which the act or omission
occurred. 28 U.S.C. § 1346(b); Budden v. United States, 15 F.3d 1444, 1449 (8th Cir.
1994). All events giving rise to this action occurred in Nebraska; therefore, Nebraska
law controls. See id.

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Id. Under the “substantial factor” test, a defendant’s conduct is a proximate cause of
the result “if it was a substantial factor in bringing it about.” Smith v. Colo. Organ
Recovery Sys., Inc., 694 N.W.2d 610, 623 (Neb. 2005).

        The Chapas argue that the district court erred in utilizing the “but for” test
instead of the “substantial factor” test to determine whether Dr. Garri’s negligence
was a proximate cause of Dakota’s injuries.3 They contend that under the “but for”
test, a physician will always escape liability for failing to diagnose and report child
abuse because the abuse inflicted by parents or other individuals will supercede any
negligence by the physician.

       We review the district court's interpretation of state law de novo. Neb. Plastics,
Inc. v. Holland Colors Ams. Inc., 408 F.3d 410, 419 (8th Cir. 2005). While the
Chapas argue for the application of the “substantial factor” test to these facts so
physicians will not always escape liability, Nebraska courts have declined to apply the
“substantial factor” test to a case merely because it involves multiple parties. See,
e.g., Smith, 694 N.W.2d at 623. In Smith, after a donated liver failed, the recipient
sued the surgeon who removed the liver from the donor, the surgeon’s employer, and
a transport agency. The Nebraska Supreme Court specifically decided that a


      3
         We disagree with the United States’ argument that the district court actually
employed the “substantial factor” test in its analysis. The district court stated in its
opinion that it “must consider whether [Dr. Garri’s] failure to review Dakota’s records
was the proximate cause of Dakota’s injuries.” (Emphasis added.) It then cited to
Nebraska cases that used the standard “but for” test. See Hamilton v. Bares, 678
N.W.2d 74 (Neb. 2004) (where the court decided whether a single actor’s negligence
proximately caused an injury); Munstermann ex rel. Rowe v. Alegent Health-
Immanuel Med. Ctr., 716 N.W.2d 73, 87 (Neb. 2006) (where the court used the
standard “but for” test to determine whether an injury “reasonably flowed” from the
defendants’ alleged breach of duty). Based on the district court’s analysis, we believe
that it applied the “but for” proximate cause test.

                                          -7-
substantial factor instruction was not necessary because that case was not “a case in
which liability could never be established under the standard [‘but for’] proximate
cause instruction.” Id. Instead, the Smith court found that the standard “but for” test
was appropriate because a cause is proximate if it is one that “produces a result in a
natural and continuous sequence and without which the result would not have
occurred.” Id. at 624.

        In short, the “substantial factor” test would be appropriate only if Dakota’s
father could escape liability because the conduct of Dr. Garri alone would have been
sufficient to cause Dakota’s injuries. See Reimer, 605 N.W.2d at 781. Instead, the
injury clearly would not have occurred without Dakota’s father’s actions and would
not have occurred based solely on Dr. Garri’s actions. Furthermore, this is not a case
where liability could never be established under the “but for” test, see Smith, 694
N.W.2d at 623, because Dakota’s father’s actions alone are sufficient to establish
liability. Instead, the “but for” test allowed the district court to determine whether Dr.
Garri’s deviation from the medical standard of care caused Dakota’s injuries “in a
natural and continuous sequence” and whether “the result would not have occurred”
absent that deviation. Id. at 624. Therefore, we find that the district court properly
utilized the “but for” test in determining whether Dr. Garri’s deviation from the
medical standard of care was the proximate cause of Dakota’s injuries.4

      B. Proximate Cause Determination

      Proximate cause is a question of fact under Nebraska law when there is
“conflicting evidence.” Staley v. City of Omaha, 713 N.W.2d 457, 466 (Neb. 2006).
We review a district court’s findings of fact under the clearly erroneous standard. Id.

      4
       We do not find persuasive the Chapas’ reliance on the California Supreme
Court’s decision in Landeros v. Flood, 551 P.2d 389, 395-96 (Cal. 1976). California’s
law concerning proximate cause has no bearing on proximate cause under Nebraska
law.

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However, we review de novo the legal question of whether there was sufficient
evidence to submit an issue to a jury. Carter v. Kansas City S. Ry. Co., 456 F.3d 841,
848 (8th Cir. 2006). In this bench trial, it is unclear from the record whether the
district court weighed the conflicting evidence and made a factual determination that
the Chapas did not prove proximate cause or whether the district court made a legal
determination that the evidence was so insufficient that it need not make a factual
determination. Giving the Chapas the most favorable standard of review, we will
assume without deciding that the district court made the determination as a matter of
law and use the de novo standard of review.

       We do not find error in the district court’s determination that the Chapas’
evidence was insufficient to prove that Dr. Garri’s failure to review Dakota’s records
proximately caused Dakota’s injuries. While neither party focuses on the district
court’s initial step in its proximate cause analysis, the district court first assumed that
had Dr. Garri reviewed Dakota’s medical records he would have suspected child abuse
and contacted Family Advocacy. The district court then found that there was only
“wishful speculation” as to how Family Advocacy would have responded to any
report of child abuse suspicion. In order to meet their burden of proof, the Chapas had
to provide evidence that was “sufficient to make the theory of causation reasonable
and not merely possible.” King v. Crowell Mem’l Home, 622 N.W.2d 588, 594 (Neb.
2001). “Speculation and conjecture are not sufficient to establish causation. . . .
[T]here must be something more which would lead a reasoning mind to one
conclusion rather than to another.” Id. In the context of medical malpractice claims,
“[m]edical expert testimony regarding causation based upon possibility or speculation
is insufficient; it must be stated as being at least ‘probable,’ in other words, more
likely than not.” Neill v. Hemphill, 607 N.W.2d 500, 505-06 (Neb. 2000).

       The Chapas argue that they presented sufficient evidence to prove that had Dr.
Garri reviewed Dakota’s records, he would have suspected child abuse, reported the
suspicion of child abuse to Family Advocacy, and Dakota’s father would not have

                                           -9-
injured Dakota. The Chapas contend that they satisfied their burden with Dr. Tilelli’s
expert medical testimony that had Dr. Garri reported a suspicion of child abuse to
Family Advocacy, it was more likely than not that Dakota’s father would not have
injured Dakota. They also argue that a Family Advocacy employee could not have
testified about how Family Advocacy would have responded to a report by Dr. Garri
because his or her testimony would have been speculative.

       While Dr. Tilelli did testify about what he believed was more likely than not the
proximate cause of Dakota’s injuries, he never worked with Family Advocacy and
was not an expert on Family Advocacy’s policies and procedures. Without any
competent testimony about how Family Advocacy would have responded to a
situation similar to Dakota’s, the district court correctly held that there was only
“wishful speculation” as to whether Dakota’s injuries would have been prevented had
Dr. Garri contacted Family Advocacy. Therefore, the district court did not err in its
finding that Dr. Garri’s negligence did not proximately cause Dakota’s injuries.

       Finally, the Chapas’ argument that the district court erred in excluding Mrs.
Chapa’s testimony that she would have removed Dakota from his parents if she had
known of any of the three hospital visits and had suspected child abuse also fails.
“Rulings on admissibility of evidence will not be reversed absent a clear and
prejudicial abuse of discretion.” Ahlberg v. Chrysler Corp., 481 F.3d 630, 632 (8th
Cir. 2007) (quotation omitted). The Chapas did not present any evidence showing that
Mrs. Chapa would have been informed of the hospital visits had Dr. Garri reported a
suspicion of child abuse to Family Advocacy. Without any such proof, the testimony
was speculative and not relevant, and the district court did not clearly abuse its
discretion in excluding this testimony. See Fed. R. Evid. 402.




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III.   CONCLUSION

      For the foregoing reasons, we affirm the district court’s judgment in favor of
the United States.
                       _____________________________




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