                                                                           FILED
                           NOT FOR PUBLICATION                             AUG 18 2014

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JAMES K. SHORT,                                  No. 13-36101

              Plaintiff - Appellant,             D.C. No. 3:10-cv-00248-SLG

  v.
                                                 MEMORANDUM*
UNITED STATES OF AMERICA,

              Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Alaska
                    Sharon L. Gleason, District Judge, Presiding

                           Submitted August 14, 2014**
                               Anchorage, Alaska

Before: FARRIS, D.W. NELSON, and NGUYEN, Circuit Judges.

       James K. Short appeals the district court’s entry of judgment on his Federal

Tort Claims Act suit in favor of the United States following a bench trial. We have

jurisdiction under 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.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      We review a district court’s findings of facts and “the results of essentially

factual inquiries applying the law to the facts” made during a bench trial for clear

error. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002) (internal

quotation marks omitted).

      The district court did not clearly err by relying on expert testimony to find

that the treatment plan prescribed by the treating medical professional met the

applicable standard of care. An expert testified that colon cancer was extremely

rare for people of Short’s age. In addition, Short did not have a family history of

colon cancer. Based on these findings of fact, the district court made a reasonable

inference that the United States did not breach a duty owed to Short when it made

the initial diagnosis of hemorrhoids based on Short’s symptoms.

      The district court did not err by finding Short’s recovery barred based on a

finding that Short’s fault was greater than the United States’. Lasley v. Combined

Transp., Inc., 261 P.3d 1215, 1225 n.7 (Or. 2011) (en banc). Short did not seek

medical care for his rectal bleeding and other symptoms between December 18,

2007 and March 25, 2009, even though he had been instructed by medical

professionals to return if he experienced further symptoms. Despite numerous

meetings with medical professionals in 2008, medical records indicate that Short

never mentioned his abdominal problems. Short mentioned his abdominal


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problems on March 25, 2009. He was then immediately referred for a colonoscopy

and a cancer diagnosis was made in April 2009. Based on this evidence, the

district court did not err in determining that Short’s recovery was barred under

Oregon law as his fault was comparatively greater than that of Keene. See Son v.

Ashland Cmty. Healthcare Servs., 244 P.3d 835, 844–45 (Or. App. 2010).

      The district court did not clearly err by finding Short failed to prove an

injury where the record lacks evidence that Short’s treatment or prognosis were

affected by a delayed diagnosis. Short presented neither specific evidence nor

expert testimony that an earlier diagnosis would have resulted in an improved

prognosis or a less invasive surgery. Further, the record supports the finding that

the diagnostic procedures identified by Short would not have diagnosed his cancer

if performed by the United States on December 18, 2007. The DRE diagnostic

procedure that Short argues should have been performed was eventually performed

in March 2009. Even at that later date, the procedure did not detect the cancer.

      AFFIRMED.




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