                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-2855
                         ___________________________

                           Elliot Kaplan; Jeanne Kaplan

                       lllllllllllllllllllll Plaintiffs - Appellants

                                            v.

  Mayo Clinic; Mayo Foundation; Mayo Foundation for Medical Education and
Research; Mayo Rochester, Inc.; Mayo Clinic Rochester, Inc.; Lawrence J. Burgart

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                     Appeal from United States District Court
                    for the District of Minnesota - Minneapolis
                                   ____________

                            Submitted: October 18, 2016
                              Filed: February 13, 2017
                                   ____________

Before LOKEN, SMITH, and COLLOTON, Circuit Judges.
                           ____________

SMITH, Circuit Judge.

      Elliot and Jeanne Kaplan sued Dr. David Nagorney, Dr. Lawrence Burgart, and
Mayo Clinic and its affiliates (“Mayo”) for medical malpractice, breach of contract,
lack of informed consent, and loss of consortium following a surgical procedure
performed on Elliot after a misdiagnosis. The district court1 dismissed all claims
against Dr. Nagorney, the surgeon who performed the medical procedure, because the
Kaplans failed to produce expert testimony by the scheduled deadline. The case
proceeded to trial against Mayo and Dr. Burgart on the breach-of-contract and
malpractice claims. At the close of the plaintiffs’ case-in-chief, the district court
granted Mayo’s motion for judgment as a matter of law on the breach-of-contract
claim. Following trial, the jury returned a verdict in favor of the defendants on the
malpractice claim.

        On appeal, we upheld the jury verdict but vacated the judgment in favor of
Mayo on the breach-of-contract claim. This court held that the district court erred by
requiring expert testimony to establish a contract breach and remanded the claim to
trial. Kaplan v. Mayo Clinic (Kaplan I), 653 F.3d 720, 729 (8th Cir. 2011) (“The
plaintiffs therefore offered sufficient evidence in their case-in-chief to support a
breach-of-contract claim against Mayo without offering the testimony of an expert.”).
After a four-day bench trial, the district court entered judgment in favor of Mayo on
the breach-of-contract claim. The Kaplans again appeal, and we affirm.

                                   I. Background
       Elliot Kaplan was hospitalized in Kansas City, Missouri, for intense abdominal
pain. The hospital staff performed a computerized tomography (CT) scan and found
a three-to-four centimeter mass on his pancreas. After a needle biopsy, hospital
doctors diagnosed Elliot with pancreatic cancer. The hospital referred him to
Dr. Nagorney at the Mayo Clinic in Rochester, Minnesota for surgery.

     Before heading to the Mayo Clinic, Elliot’s condition began improving. He
became skeptical of his diagnosis. His father, a cardiologist, sent a letter to


      1
       The Honorable John R. Tunheim, Chief Judge, United States District Court for
the District of Minnesota.

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Dr. Nagorney expressing his concerns about whether Elliot had been properly
diagnosed. In response, Dr. Nagorney had two pathologists at the Mayo Clinic
perform independent analyses of Elliot’s biopsy. Both pathologists confirmed the
cancer diagnosis.

       When the Kaplans met with Dr. Nagorney, he explained to the couple the need
for immediate surgical intervention. Dr. Nagorney recommended the Whipple
procedure, an invasive surgery that typically includes the removal of the wide part of
the pancreas, the anterior intestine, the gallbladder, and part of the stomach. In
explaining the procedure, Dr. Nagorney explained that during the surgery he would
be testing the tissue surrounding the pancreas for cancerous cells to ensure complete
removal. Elliot, still unconvinced of his diagnosis, wanted more proof. He testified
that he asked Dr. Nagorney to do an additional biopsy of his pancreas during the
procedure to ensure that he had cancer. Dr. Nagorney denied that Elliot made this
request.

        Dr. Nagorney successfully performed the Whipple procedure without doing a
biopsy of the pancreas during the procedure as he had allegedly promised. When
pathologists tested the removed tissue, they discovered that the tumor in Elliot’s
pancreas was benign. Elliot suffered not from cancer, but chronic pancreatitis. His
initial biopsy resulted in a false positive. Since having the Whipple procedure, Elliot
continues to suffer negative health complications that affect his daily life.

       On remand from this court, the district court considered whether Elliot and
Dr. Nagorney entered into a contract under Minnesota law to perform a biopsy of his
pancreas during the Whipple procedure. Both parties consented to a bench trial,
during which the district court heard evidence relating to the accuracy of needle
biopsies. According to the evidence, the possibility of a false positive in a biopsy of
pancreatic cancer is far less than one percent, but almost a ten-percent chance exists
that such a biopsy would present a false negative. Dr. Nagorney testified that Elliot’s

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case presented the only false positive for pancreatic cancer in a needle biopsy that he
had ever encountered in his decades-long career. Dr. Nagorney also testified that he
trusted the accuracy of the biopsy and that doing another biopsy during surgery would
have gone against his standard practices. Mayo presented expert testimony during
trial demonstrating that a typical surgeon would not rely on the negative result of a
biopsy during surgery because the likelihood of a false negative would far outweigh
the likelihood of a false positive.

      According to the evidence, physicians in general—and specifically
Dr. Nagorney—avoid making promises like the alleged promise made to the Kaplans.
The district court concluded that Dr. Nagorney’s explanation of the Whipple
procedure likely confused the Kaplans, particularly Elliot. The court believed that
Dr. Nagorney explained to them that he would be using biopsies during the surgery
to ensure that the cancer had not spread to surrounding tissues. These results would
determine how he would proceed with the Whipple procedure, not whether he would
proceed in the first place. Finding Dr. Nagorney’s version of the conversation more
credible in light of the circumstances, the district court concluded that Dr. Nagorney
did not promise to do a biopsy of Elliot’s pancreas during the surgery and that no
meeting of the minds occurred to form a contract. Because no contract existed, the
breach-of-contract claim failed. The court therefore entered judgment in favor of
Mayo.

                                    II. Discussion
       The Kaplans appeal the district court’s factual findings regarding contract
formation and its ultimate judgment. “After a bench trial, this court reviews legal
conclusions de novo and factual findings for clear error.” Urban Hotel Dev. Co. v.
President Dev. Grp., L.C., 535 F.3d 874, 879 (8th Cir. 2008). In Minnesota, whether
a contract has been formed is a question of fact. Watkins Inc. v. Chilkoot Distrib.,
Inc., 655 F.3d 802, 805 (8th Cir. 2011) (applying Minnesota law). Factual findings
are only overturned if: (1) the findings are not supported by substantial evidence in

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the record, (2) the findings are based on an erroneous view of the law, or (3) the court
is left with the definite and firm conviction that an error has been made. Tadlock v.
Powell, 291 F.3d 541, 546 (8th Cir. 2002). “We give due regard to the opportunity
of the district court to judge the credibility of the witnesses.” Id.

       The Kaplans argue that the district court committed clear error in finding that
no contract was formed. First, they argue that we settled the contract formation issue
in Kaplan I, and the district court was “bound to honor” this mandate as law of the
case. See United States v. Castellanos, 608 F.3d 1010, 1016 (8th Cir. 2010). This
assertion misconstrues our previous holding. In Kaplan I, we held that the evidence
in the record, viewed in the light most favorable to the plaintiffs, was sufficient for
a reasonable jury to find contract formation. 653 F.3d at 728. Our holding, however,
did not concomitantly preclude the district court, as fact finder, from determining
otherwise after weighing the evidence. The district court did not violate the law of the
case by determining that no contract was formed between the Kaplans and Mayo.

       Second, the Kaplans argue that our mandate in Kaplan I required the district
court to exclude all expert testimony on the contract-formation issue. The Kaplans
contend that the district court erred by relying on expert testimony in finding that no
contract was formed. They argue that without the aid of this expert testimony, the
defendants failed to present sufficient evidence for a finding in their favor. We
disagree. In Kaplan I, we concluded that Minnesota law did not require the Kaplans
to present expert affidavits to establish a prima facie case of medical malpractice. We
did not, however, forbid the defendants’ use of expert testimony to establish a defense
to the claim of a special contract in the performance of the operation. Our mandate
did not prohibit the defendants’ use of expert testimony; therefore, the Kaplans’
sufficiency-of-the-evidence argument necessarily fails. The district court’s findings
were supported by substantial evidence on the record.




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       Third, the Kaplans assert that our review of the factual findings of the district
court should leave us with a firm conviction that the district court made an error. To
support this argument, they allege minor inconsistencies in the record regarding what
was said during their meeting with Dr. Nagorney. These inconsistencies all point to
one real question: Did Dr. Nagorney promise to do a biopsy of Elliot’s pancreas
during the Whipple procedure? The district court found that Dr. Nagorney did not
make such a promise and that Elliot misunderstood the description of the procedure.
If the district court’s factual conclusions are plausible in light of the record, we will
not reverse the decision even if we might disagree with its conclusion. Story v.
Norwood, 659 F.3d 680, 685 (8th Cir. 2011).This factual finding does not provide us
with the conviction that the district court committed clear error. “To be clearly
erroneous, a decision must strike us as more than just maybe or probably wrong; it
must . . . strike us as wrong with the force of a five-week-old, unrefrigerated dead
fish.” In re Nevel Props. Corp., 765 F.3d 846, 850 (8th Cir. 2014) (ellipsis in
original) (quoting In re Papio Keno Club, Inc., 262 F.3d 725, 729 (8th Cir. 2001)).

       Finding no clear error, we uphold the district court’s factual finding that the
Kaplans and Dr. Nagorney did not form a contract. Without a contract, the questions
of breach, damages, and all derivative claims become moot, and we decline to address
them.

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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