                                                                               FILED
                             NOT FOR PUBLICATION                               MAR 01 2011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



DEBORAH K. RUTLEDGE and                           No. 09-15198
THOMAS R. RUTLEDGE,
                                                  DC CV No. 06-008
                Plaintiffs - Appellees,

  v.                                              MEMORANDUM *

UNITED STATES OF AMERICA,

                Defendant - Appellant.



                       Appeal from the District Court of Guam
              Frances Tydingco-Gatewood, Chief District Judge, Presiding

                       Argued and Submitted February 15, 2011
                                 Honolulu, Hawaii

Before:        TASHIMA, W. FLETCHER, and BERZON, Circuit Judges.


       The United States appeals from the district court’s judgment awarding

damages, after a bench trial, to plaintiffs on their personal injury/medical

malpractice claim under the Federal Tort Claims Act (“FTCA”). We have




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Guam law governs this

FTCA action. 28 U.S.C. §§ 1346(b)(1), 2674.

      We review for clear error the district court’s factual findings, including its

findings on causation. Oberson v. U.S. Dep’t of Agric., 514 F.3d 989, 1000 (9th

Cir. 2008). We also review for clear error the district court’s damages

determination. Trevino v. United States, 804 F.2d 1512, 1514-15 (9th Cir. 1986).

      1.     The district court did not clearly err in finding causation. One of

plaintiffs’ experts, Dr. Steele, testified that Mrs. Rutledge would not have sustained

severe neurological injury but for the negligence of Air Force medical personnel.

Although government experts testified to the contrary, it was not clear error for the

district court to credit Dr. Steele’s testimony. See Prescod v. AMR, Inc., 383 F.3d

861, 869 (9th Cir. 2004). The government’s argument that no “reliable evidence”

showed that Mrs. Rutledge had Cauda Equina Syndrome (“CES”) at the time of her

visits to the Air Force clinic is semantic. Whether or not she had CES or a pre-

CES condition, the evidence supported the district court’s ultimate finding that

Mrs. Rutledge would not have sustained her severe injuries if Air Force medical

personnel had met the applicable standard of care.

      2.     Nor did the district court clearly err in its damages award. In light of

Mrs. Rutledge’s severe injuries, the award is not so excessive as to shock the sense


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of justice under Guam law. 20 Guam Code Ann. § 2281 (“Damages must, in all

cases, be reasonable . . . .”); see Yako v. United States, 891 F.2d 738, 745 (9th Cir.

1989) (“To determine whether an [FTCA] award is excessive, this court looks to

the relevant state’s [or territory’s] case law on excessive awards.”); Porter v.

Tupaz, 1984 WL 48854, at *5 (D. Guam App. Div. June 12, 1984) (“[A]n appellate

court may interpose its judgment as to the proper amount of damages for personal

injuries only when it appears that the recovery in the lower court was so excessive

as to shock the sense of justice and raise a presumption that the amount awarded

was arrived at as a result of passion and prejudice, rather than upon a fair and

honest consideration of the facts.”).

      Although we might come to different conclusion had we been sitting in the

trial court, we cannot say that the award shocks the sense of justice. And there is

no indication on this record, nor does the government argue, that the amount of the

award was influenced by passion or prejudice.

      AFFIRMED.




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