     Case: 14-30896    Document: 00513198245      Page: 1    Date Filed: 09/17/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                  No. 14-30896                    United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
DINA M. ROBLES BUSH,                                             September 17, 2015
                                                                    Lyle W. Cayce
             Plaintiff - Appellant Cross-Appellee                        Clerk

v.

UNITED STATES OF AMERICA,

             Defendant - Appellee Cross-Appellant




                 Appeals from the United States District Court
                     for the Eastern District of Louisiana


Before WIENER, CLEMENT, and SOUTHWICK, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      For the reasons explained below, we AFFIRM the district court’s order
denying the United States of America’s (the “Government’s”) motion for
summary judgment, its order denying the Government’s motion for judgment
on partial findings, and its amended judgment.
                           FACTS AND PROCEEDINGS
      The decedent, Pete Bush (“Pete”), suffered from serious heart issues. By
the fall of 2008, he “had only days or weeks to live,” and to save his life, doctors
at the McGuire VA Medical Center (“McGuire”) in Richmond, Virginia,
surgically implanted a HeartMate II Left Ventricular Assist Device (“LVAD”)
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                                        No. 14-30896
in Pete’s chest. The LVAD is manufactured by the Thoratec Corporation
(“Thoratec”).
       One month after Pete’s surgery, while he was still recuperating at
McGuire, Thoratec issued an “Urgent Correction Notice” (the “Notice”). The
Notice explained that “wear and fatigue of the percutaneous lead connecting
the [LVAD] blood pump with the external System Controller may result in
damage that has the potential to interrupt pump function and may require a
reoperation to replace the pump.” 1 The Notice warned that failure to replace
the pump could cause death. It also explained that “[d]amage to the electrical
conductors within the lead may or may not be preceded by visible damage to
the outer layer of the lead,” but could be “evidenced by . . . transient alarms
due to short or open circuits, often associated with movement of the patient or
the lead.”
       A nurse named Lisa Martin (“Martin”) taught Pete and his wife,
plaintiff-appellant Dina M. Bush (“Mary”) (collectively, the “Bushes”), about
the various warning alarms and lights that the LVAD could emit, along with
the proper response to each. Generally speaking, she told them that
“intermittent alarms [were] not life-threatening,” while “continuous alarms
[we]re.” Mary testified that neither Martin nor Pete’s heart surgeon, Dr.
Gundars Katlaps (“Katlaps”), told the Bushes about the Notice or its contents. 2
       Mary testified that the night before Pete died, they “heard a lot [of] little
beep[s], light beep[s] and he was on the power base and we got up and we
checked everything in the machine [to] see if it was something wrong.” She
further testified that they did everything Martin instructed them to do but


       1  A “percutaneous lead” is a wire-like device that is inserted through the skin to
connect implanted medical devices with external equipment.
        2 There was conflicting testimony on this point, but the district court credited Mary’s

account. The district court did not clearly err, so we accept its credibility determination. See,
e.g., Orduna S.A. v. Zen-Noh Grain Corp., 913 F.2d 1149, 1154 (5th Cir. 1990).
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found nothing amiss. Because the LVAD seemed to be working, they “went
back to sleep.” In the morning, they heard the same “light beep[s],” but once
again, they could not find any problem with the device. This time, the Bushes
decided to change Pete’s “controller.” When they did so, “there was a noise
coming,” but “there was nothing showing on the power base [that] there was
something wrong, no noise, no nothing.” “[I]t was just a noise in the controller,
and [Pete] got himself and the batteries and he said he was feeling fine.” The
Bushes decided to call Martin. They left a message for her and asked her to
call back when she could. Martin returned their call a few hours later. Mary
put the phone up to the LVAD’s external equipment so Martin could hear the
beeps. During the call, Pete started to feel dizzy, and Martin instructed Mary
to keep Pete “on batteries until we[] see what’s going on.” Still, she told Mary
not to worry unless there was a loud beep, in which case, Mary should take
Pete to the hospital. Martin then told Mary that she would call Thoratec to get
further information. Shortly after Mary ended her call with Martin, the LVAD
emitted a loud beep and displayed a red light. Mary’s daughter called 9-1-1,
but Pete died shortly afterward. Mary testified that, had she known that
transient beeps from the LVAD could signal a serious problem, she would have
gotten help for her husband.
      Mary sued Thoratec in Louisiana state court, but Thoratec removed the
case to federal court. In October 2012, Mary filed a third amended complaint.
As before, she stated claims against Thoratec. But for the first time, she also
asserted a Federal Tort Claims Act (“FTCA”) claim 3 against the Government
based on medical malpractice allegedly committed by Katlaps and Martin.




      3   See 28 U.S.C. § 2674.
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                                       No. 14-30896
       The Government moved for summary judgment, arguing that the
Virginia Medical Malpractice Act 4 “contains a threshold expert certification of
merit requirement,” and that “[f]ailure to comply with this threshold
requirement results in dismissal.” See Va. Code Ann. § 8.01-20.1. Contending
that Mary had failed to satisfy the requirement, the Government asked the
district court to grant summary judgment. The district court denied the
motion, holding, inter alia, that the common knowledge exception to the expert
evidence requirement applied because Mary’s FTCA claim could be evaluated
by a layperson without the aid of expert testimony.
       In November 2013, on the eve of trial, Mary settled with Thoratec, and
the district court dismissed Mary’s claims against Thoratec without prejudice. 5
The district court then conducted a bench trial on Mary’s FTCA claim against
the Government. The Government made an oral motion under Federal Rule of
Civil Procedure 52(c) for judgment on partial findings, 6 which the district court
denied. The court then found the Government liable and entered judgment in
the amount of $223,535 “with a credit for the amount of consideration paid for
the prior settlement [with Thoratec], in addition to court costs and judicial
interest from the date of the judgment until paid.”
       Mary filed a motion for a new trial or to amend the judgment arguing,
inter alia, that the United States was liable for Pete’s funeral expenses. The
Government also moved to amend the judgment, arguing that the district
court’s order that it pay interest conflicted with the law governing awards of
interest in FTCA cases. The Government also asked the court to clarify the
amount due after the credit for the settlement award. In its response, the



       4 See Simpson v. Roberts, 752 S.E.2d 801, 803-04 (Va. 2014) (discussing Act’s history).
       5 The terms of the settlement agreement are sealed.
       6 The Government argued, as it does on appeal, that the common knowledge exception

to Virginia’s expert evidence requirement does not apply in this case.
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                                      No. 14-30896
Government conceded that it was liable for Pete’s funeral expenses. The
district court thus granted Mary’s request for funeral expenses but otherwise
denied her post-trial motion. The district court granted the Government’s post-
trial motion in full. The district court then entered an amended judgment,
reaffirming Mary’s original award and adding Pete’s funeral expenses. It also
stated the exact amount owed by the Government after the credit for the
settlement award. 7
       Mary appealed the district court’s amended judgment. The Government
cross-appealed from the district court’s denials of its motions and from the
amended judgment.
                                STANDARD OF REVIEW
       “In an appeal from a district court’s final judgment following a bench
trial, we review the district court’s findings of fact for clear error and review
conclusions of law de novo.” Mid-Continent Cas. Co. v. Davis, 683 F.3d 651, 654
(5th Cir. 2012).
       The FTCA provides that “[t]he United States shall be liable . . . in the
same manner and to the same extent as a private individual under like
circumstances, but shall not be liable for interest prior to judgment or for
punitive damages.” 28 U.S.C. § 2674. Thus, “[t]he components and measure of
damages in FTCA claims are taken from the law of the state where the tort
occurred.” Ferrero v. United States, 603 F.2d 510, 512 (5th Cir. 1979). Mary’s
claims against Thoratec were governed by Louisiana law, while her claims
against the Government are governed by Virginia law.




       7Because comparing the original judgment with the amended judgment would allow
non-parties to determine the amount of Mary’s settlement award, the district court filed the
amended judgment under seal.
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                                       No. 14-30896
                                       DISCUSSION
                                              I.
       The Government argues that the district court erred as a matter of law
when it applied Virginia’s common knowledge exception and held that Mary
had proved her medical malpractice claim without offering expert testimony.
We disagree.
A. Relevant Virginia Law Governing Mary’s Medical Malpractice Claim
       Under Virginia law, a plaintiff asserting a medical malpractice claim
must establish: (1) the applicable standard of care; 8 (2) “that the defendant
violated the applicable standard of care and was therefore negligent”; and (3)
“that the defendant’s negligent acts were a proximate cause of the injury.”
Howell v. Sobhan, 682 S.E.2d 938, 941 (Va. 2009). “[E]xpert testimony is
ordinarily necessary to establish the appropriate standard of care, to establish
a deviation from the standard, and to establish that such a deviation was the
proximate cause of the claimed damages.” Webb v. Smith, 661 S.E.2d 457, 459
(Va. 2008) (quoting Raines v. Lutz, 341 S.E.2d 194, 196 (Va. 1986)). 9 But
Virginia has long recognized an exception to this rule in “those rare cases in
which a health care provider’s act or omission is clearly negligent within the
common knowledge of laymen.” Id. (quoting Raines, 341 S.E.2d at 196 n.2); see
also Va. Code. Ann. § 8.01-20.1.
B. The District Court Did Not Err When It Found the Government Liable
Based on Katlaps’s and Martin’s Failure to Inform the Bushes About the Notice



       8 Virginia law “provides for a statewide standard of care in medical malpractice cases
unless a health care provider proves that a local standard of care is more appropriate.”
Poliquin v. Daniels, 486 S.E.2d 530, 533 (Va. 1997); see Va. Code Ann. § 8.01-581.20 (“[T]he
standard of care by which the acts or omissions are to be judged shall be that degree of skill
and diligence practiced by a reasonably prudent practitioner in the field of practice or
specialty in this Commonwealth . . . .”).
       9 The Government does not challenge the application of the common knowledge

exception to the district court’s causation determination.
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                                    No. 14-30896
      Mary alleges that Katlaps and Martin committed malpractice when they
failed to inform her about the possibility of a “transient alarm” and the serious
risk it signaled. 10 Because the Bushes were primarily responsible for
identifying and responding to the alarms emitted by the LVAD, we agree that
this was malpractice. And we hold that Mary was not required to adduce expert
testimony to prove her claim.
      In Beverly Enterprises-Virginia, Inc. v. Nichols, 441 S.E.2d 1 (Va. 1994),
the Virginia Supreme Court applied the common knowledge exception in a case
where a healthcare administrator failed to share information necessary for
appropriate care with primary caretakers. Blanche Nichols suffered from
Alzheimer’s disease, and while in her sons’ care, she choked on her food on two
occasions. Id. at 2. Blanche’s sons later placed her in a nursing home. One of
them informed the nursing home’s administrator about Blanche’s choking
incidents and told him that she could not eat by herself. Blanche’s daughter-
in-law separately informed the administrator about the choking incidents. Id.
Blanche choked to death after a nursing home employee delivered her a food
tray without staying to help her. Id. at 2-3. It was not clear whether the
employee who delivered the tray knew that Blanche needed help, but it was
evident that the nursing home failed to tell other employees about Blanche’s
needs. Id. at 2. Blanche’s estate sued for medical malpractice without offering
expert testimony to establish the relevant standard of care or breach. Id. at 3.
The nursing home argued that the estate’s case failed because there was no
expert testimony. But the Virginia Supreme Court rejected that argument. The
court held that expert testimony is not required when “the alleged act of
negligence clearly lies within the range of the jury’s common knowledge and


      10  She also alleges that Martin committed malpractice by failing to diagnose the
problem with Pete’s LVAD on the day of his death. Because we decide this case based on
Mary’s first theory of malpractice, we do not consider her second theory.
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                                       No. 14-30896
experience.” Id. And it reasoned that, because “[t]he defendant knew that
[Blanche] was unable to feed herself and that she had two prior serious choking
incidents,” the jury did not need expert testimony to find that the nursing home
“was negligent because its employees failed to assist Mrs. Nichols” after
“le[aving] a tray of food with [her] and fail[ing] to provide assistance to her.”
Id. 11
         This case is similar to Beverly Enterprises. The Government’s own expert
testified that it was important “that patients were properly educated on how
to react to alarms.” Although Katlaps and Martin knew that a transient beep
from the LVAD could be a sign of a serious malfunction, they failed to inform
the Bushes about the risk indicated by such a sound. In these circumstances,
a layman could determine that Katlaps and Martin breached the relevant
standard of care.
         The government argues that this case is more similar to Bly v. Rhoads,
222 S.E.2d 783 (Va. 1976), superseded by statute on other grounds as recognized
in Henning v. Thomas, 366 S.E.2d 109 (Va. 1988). In Bly, a patient alleged that
her doctor committed medical malpractice when he failed to inform her of the
risks related to her upcoming surgery and alternatives to the procedure. She
claimed that the doctor’s failure amounted to a failure to obtain informed
consent. See id. at 785. The court held that the patient was required to offer
expert testimony to show that her doctor’s failure to fully inform her of the
risks breached the relevant standard of care. Id. at 788. Because the plaintiff’s




          The Virginia Supreme Court has applied the exception in several other cases. See,
         11

e.g., Webb, 661 S.E.2d at 459 (holding that expert testimony not required to show that, where
doctor performed only one of two promised surgical procedures, doctor’s failure was
proximate cause of need for second surgery); Coston v. Bio-Med. Applications of Va., Inc., 654
S.E.2d 560, 563 (Va. 2008) (holding same when medical center employees twice placed patient
in chair that broke and caused her to fall); Dickerson v. Fatehi, 484 S.E.2d 880, 882 (Va. 1997)
(holding same when doctor left syringe in patient’s neck after surgery).
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                                  No. 14-30896
expert was not qualified to testify, the court affirmed the dismissal of her claim.
Id. at 789.
      Bly is distinguishable. First, Bly addresses a pure question of law:
whether “expert testimony of a physician [is] necessary to prove the
requirements for liability under the informed consent doctrine.” Id. at 784. The
patient in Bly advocated for the “modern trend,” which bases the standard of
care on “‘the patient’s need’ to know” the risks of a procedure rather than “the
standards of the medical community.” Id. at 785. The Bly court reaffirmed the
traditional rule that the duty to inform is based on the local standard of care,
and thus also reaffirmed the traditional rule that expert testimony is generally
required. See id. at 787. Nevertheless, the court acknowledged that the
common knowledge exception remained viable, even in informed consent cases.
See id. (“[W]e can envision situations, albeit relatively infrequent, where from
ordinary human knowledge and experience the necessity of disclosure is so
obvious that expert testimony should not be required.”). The patient did not
argue that the common knowledge exception applied, so the Bly court had no
reason to consider its application.
      Second, the questions involved in informed-consent cases are more
complicated than the questions presented in this case. When a doctor considers
whether she has a duty to inform a patient about the risks posed by an
upcoming procedure, she must decide whether “the information is material to
an informed decision on treatment, and that disclosure would not pose an
unreasonable threat of detriment to the patient’s well-being or to his ability to
make a rational decision.” Id. at 788. But here, like in Beverly Enterprises, the
risk was inherent to an already-existing condition; neither Blanche nor Pete
could avoid the risk by refusing a future medical procedure. All Katlaps and
Martin had to decide was whether the information was relevant for the Bushes.


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                                  No. 14-30896
Clearly it was. And even a layman could discern that, in such circumstances,
it was unreasonable to say nothing.
      Indeed, Katlaps’s and Martin’s complete silence about the transient
alarms is the crucial fact that makes the application of the common knowledge
exception appropriate here. Again, the Government’s expert testified that it
was important for patients to be educated on how to react to alarms. Even
accepting as true the expert’s testimony that “[t]ransient alarms can be
provoked by a large number of events,” many of them non-life-threatening, it
does not follow that silence was a defensible approach. At the very least,
Martin should have told the Bushes that transient alarms were rarely serious,
but that they should call her if they heard transient alarms just in case. Had
Martin done so, Mary testified she would have sought help for her husband
immediately instead of waiting hours to do so.
      The Government further argues that “medical malpractice was not
within the common knowledge of a layperson” because: its medical expert
testified “that there was no malpractice at all”; Katlaps and Martin already
knew about the possibility of mechanical failure before they received the
Notice; and the parties disputed whether the “transient alarms” mentioned in
the Notice were different from the alarms mentioned in the LVAD handbook.
The Government’s first argument is inapposite. If the common knowledge
exception applies, then the district court could adopt the standard of care
obvious to even the layman rather than the standard of care advocated by the
Government’s    paid    expert.   The   Government’s        second   argument     is
unpersuasive. That Katlaps and Martin already knew the information
contained in the Notice does not explain why they failed to educate the Bushes
about the relevant transient alarms. The Government’s third argument is self-
defeating. The thrust of the argument is that the word “transient” as used in
the Notice was not a technical term with a clear meaning. But if the
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                                    No. 14-30896
interpretation of the Notice does not depend on the meaning of technical
jargon, the issue is precisely the kind for which expert testimony is
unnecessary. Having heard testimony on the nature of the formal alarms
emitted by the LVAD, a layman could determine that a “transient” alarm was
something different. 12
      Because the district court properly applied the common knowledge
exception to Mary’s first malpractice theory, we affirm the district court’s
orders and amended judgment.
                                           II.
      Mary argues that the district court erred when it offset her award by the
full amount of her settlement with Thoratec. She contends that her dispute
with Thoratec was governed by Louisiana law, and that Louisiana law allows
survivorship claims for a decedent’s pain and suffering from the time of injury
until death. She also contends that Virginia law does not allow such claims.
Because Mary asserted a survivorship claim in her petition against Thoratec,
she contends that “the settlement of that claim necessarily included that
element of damages.” And because her settlement award included damages
that she could not obtain against the Government under Virginia law, she
contends that the district court erred by crediting the Government for
whatever portion of her settlement award was based on Pete’s survivorship
claim. The Government argues that Mary waived this claim by failing to
present it to the district court. We agree with the Government.
      Litigants waive issues that they fail to present to the district court. New
Orleans Depot Servs., Inc. v. Dir., Office of Worker’s Comp. Programs, 718 F.3d
384, 387-88 (5th Cir. 2013) (en banc).


      12 The Oxford English Dictionary defines “transient” as “[p]assing by or away with
time; not durable or permanent; temporary, transitory; esp. passing away quickly or soon,
brief, momentary, fleeting.” See OED Online, http://www.oed.com/view/Entry/204789.
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                                  No. 14-30896
      In Mary’s post-trial motion, she argued that the district court should
have awarded her damages for her loss of “society, companionship, comfort,
guidance, and kindly offices and advice.” She argued in the alternative that, if
the court refused to award her damages for these losses, it should reduce the
credit given to the Government by the amount of the settlement award that
compensated her for the loss of society. Mary’s arguments in her post-trial
motion did not preserve the issue she presents on appeal. Her argument below
was based on a loss-of-society claim, which compensates a surviving spouse for
that spouse’s own suffering after the decedent’s passing. See, e.g., Restatement
(Second) of Torts § 693(1) (1977). Her argument on appeal focuses on a
survivorship claim, which compensates a decedent for the decedent’s suffering
before death. See, e.g., id. § 926. Loss-of-society claims are conceptually distinct
from survivorship claims.
      Moreover, while a majority of states allow loss-of-society claims, id. § 693
cmt. d, only a minority allow survivorship claims, id. § 926 cmt. a. Presented
with Mary’s loss-of-society argument, the district court had little cause to
consider: potential differences between Louisiana and Virginia law regarding
survivorship claims; whether Mary’s settlement with Thoratec included a
survivorship award; or, assuming it did, how much of the Thoratec settlement
amount was based on Pete’s suffering before his death.
      Because Mary failed to present the survivorship argument issue in her
post-trial motion, we may not consider it on appeal.
                                        III.
      Mary contends that the district court failed to award her damages for
loss of society, companionship, comfort, guidance, kindly offices, and advice.
She further argues that, because her settlement with Thoratec included an
award for such damages, the district court erred by crediting the Government
for whatever portion of her settlement award was based on her loss of society,
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                                  No. 14-30896
etc. The Government maintains that an award for these damages was
“encompassed by the general damages awarded to [the] plaintiff.” We agree
with the Government.
      “A district court’s damages award is a finding of fact, which this court
reviews for clear error. The conclusions of law underlying the award are
reviewed de novo.” Jauch v. Nautical Servs., Inc., 470 F.3d 207, 213 (5th Cir.
2006) (per curiam) (footnote omitted).
      Virginia law requires courts to use several measures of damages when
entering judgments in wrongful death cases. “The verdict or judgment of the
court trying the case without a jury shall include . . . damages for,” inter alia,
“[s]orrow,   mental   anguish,   and     solace   which   may    include   society,
companionship, comfort, guidance, kindly offices and advice of the decedent.”
Va. Code Ann. § 8.01-52. The district court awarded $200,000 in general
damages for Mary’s “sorrow, mental anguish, and solace” after the loss of her
husband. In her post-trial motion, Mary presented the same argument she
presses now. The district court rejected the argument, reasoning that section
8.01-52 “clearly indicates that society, companionship, comfort, guidance,
kindly offices and advice are subcategories of sorrow, mental anguish, and
solace.” The district court then explained that “[i]t considered these
[subcategories] in fashioning its determination of damages for sorrow, mental
anguish, and solace.” Because the district court had already compensated Mary
for her loss of society, companionship, comfort, kindly offices, and advice, the
court found that it was “not necessary or appropriate to increase [the] award.”
      The district court did not err in interpreting section 8.01-52. The
provision’s use of the phrase “which may include” indicates that the
subcategories that follow are “merely exemplary and not exhaustive,” Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 133
(2012). Thus, interpreted according to its plain meaning, section 8.01-52
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                                    No. 14-30896
provides that courts must award damages for “[s]orrow, mental anguish, and
solace,” and that when courts calculate such damages, they may consider, inter
alia, the loss of the “society, companionship, comfort, guidance, kindly offices
and advice of the decedent.” Va. Code Ann. § 8.01-52. Mary fails to point to any
evidence to refute the district court’s assertion that its award included
compensation for Mary’s loss of society, etc., or to show that the district court’s
award was insufficient. Accordingly, we hold that the district court did not
commit clear error.
                                        IV.
      Mary    argues   that   the    district’s   general     damages    award    was
disproportionately smaller than awards in similar cases. We hold that the
district court’s award was not clearly erroneous or contrary to right reason.
      “The amount of damages awarded by the fact finder must be sustained,
absent an error of law, unless the reviewing court finds the amount is clearly
erroneous, or so gross or inadequate as to be contrary to right reason.”
Thompkins v. Belt, 828 F.2d 298, 301 (5th Cir. 1987) (citations omitted). This
court is especially “chary of substituting our views for those of the trial judge”
regarding “assessment[s] of damages for grief and emotional distress.”
Caldarera v. E. Airlines, Inc., 705 F.2d 778, 783 (5th Cir. 1983). Thus, awards
“within the permissible range” established in state court cases should not be
overturned unless the plaintiff can show “trial error, prejudice, or confusion.”
Brun-Jacobo v. Pan Am. World Airways, Inc., 847 F.2d 242, 246-47 & n.7 (5th
Cir. 1988).
      The district court surveyed Virginia damages awards and determined
that “general damages [awards] . . . are usually between $150,000.00 and
$950,000.00 for each survivor.” Mary argues that “[i]n every case highlighted
by the Court as similar to this case, damages exceeded those awarded to [her].”
Mary ignores Donathan v. Nicholson, No. CL04000649-00, 2007 WL 4755239
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                                No. 14-30896
(Va. Cir. Ct. Dec. 17, 2007), which the district court cited. There, a surgeon
attempted to remove a patient’s lung without telling his staff, who thought the
surgeon was performing a different procedure. The surgeon did not have
vascular clamps, which were required for the surgery, or extra blood in case
the patient needed a transfusion. The patient suffered blood loss during
surgery, which caused a brain injury, which caused the patient’s death. A
Virginia jury awarded the patient’s two daughters $140,000 each for their
individual pain and suffering. See id., 2007 WL 4755239.
      Because the district court’s award is within the permissible range of
awards established by the Virginia courts, the district court did not abuse its
discretion when it awarded Mary $200,000 in general damages.
                                CONCLUSION
      For the reasons explained, we AFFIRM the district court’s order denying
the Government’s motion for summary judgment, its order denying the
Government’s motion for judgment on partial findings, and its amended
judgment.




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