                                  ___________

                                  No. 95-3063
                                  ___________

Audrey Miner, mother and              *
natural guardian of Kimberly          *
Miner,                                *
                                      *
           Appellant,                 *
                                      *
     v.                               *   Appeal from the United States
                                      *   District Court for the District
United States of America,             *   of South Dakota.
                                      *
           Appellee.                  *


                                  ___________

                     Submitted:   May 17, 1996

                         Filed:   August 22, 1996
                                  ___________

Before MAGILL, ROSS and MURPHY, Circuit Judges.

                                  ___________

ROSS, Circuit Judge.


     Appellant Audrey Miner (Miner), mother and natural guardian of
Kimberly Miner, filed this medical malpractice action against the United
States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq.,
alleging Kimberly suffered permanent physical impairment as a result of the
negligent care provided by Indian Health Service (IHS) employees during
Kimberly's birth.    Miner now appeals the district court's1 conclusions that
the United States did not breach the standard of care during the delivery
and care of Kimberly, and that Miner failed to establish that any actions
or inaction by the




     1
      The Honorable Richard H. Battey, United States District
Judge for the District of South Dakota.
United States or its employees were the proximate cause of Kimberly's
condition.


                                       I.


     Kimberly Miner is a seven-year-old Native American child and a
resident of Whitehorse, South Dakota, located on the Cheyenne River Indian
Reservation.    During her third trimester of pregnancy, Kimberly's mother,
Audrey Miner, was abused by her husband on at least two occasions.     Miner
stated that she had been struck in the abdomen.       On November 27, 1988,
Miner was involved in a traffic accident and suffered a blow to her
abdomen.


     On December 25, 1988, Miner was admitted to the IHS hospital in Eagle
Butte, South Dakota, with irregular contractions.     Although labor had not
actually begun, Miner remained in the hospital because of bad weather
conditions and lack of transportation to her remote home.      On January 2,
1989, Miner began regular contractions and began pushing with contractions
at noon on January 3, 1989.        At approximately 2:00 p.m., Dr. Margaret
Upell, an IHS family practice physician, attempted to aid delivery by the
use of a mid-forceps procedure.     Dr. Upell had performed approximately 25
forceps deliveries, but Kimberly was the first mid-forceps delivery she
attempted.   It is undisputed that a mid-forceps delivery is more difficult
than a normal forceps procedure.    When this procedure failed, Dr. Upell and
Dr. Manary, a staff pediatrician, attempted to use a vacuum extractor to
aid delivery.    This procedure was also unsuccessful.


     Dr. Robert Wingert, an OB-GYN specialist, who was in the hospital at
the time the mid-forceps procedure was attempted, was then consulted and
conducted an ultrasound and found the baby was not in distress.           He
recommended that Miner be transferred to Pierre, South Dakota, by ambulance
for possible forceps delivery under anesthesia, or if appropriate, for
caesarean section




                                      -2-
delivery.      The Eagle Butte IHS hospital did not have the capability to
perform a caesarean section.


        While the ambulance was en route to Pierre, Miner spontaneously
delivered Kimberly at 3:47 p.m.              Dr. Upell, who was present in the
ambulance, performed the delivery.           Kimberly was found to have suffered a
skull fracture during the prior attempted mid-forceps procedure.                          She
exhibited bruises on both eyelids and on the posterior right side of her
neck.     She had a forceps mark on the right side of her scalp and a
superficial laceration at the base of her skull.


        Kimberly's apgar scores were normal right after birth, and while in
the hospital it was noted that she was vigorous, was feeding well, and was
under no respiratory distress.            Except for the superficial bruising, she
appeared to be a normal, healthy baby.                 Kimberly left the hospital on
January 13, 1989.


        Kimberly has since been diagnosed with mild pervasive developmental
disorder (PDD), which is characterized by uneven intellectual and emotional
development.       The    etiology   of    PDD    is   unknown   and   can   be   found    in
individuals who do not have brain damage.                 Kimberly also suffers from
possible seizure disorder, and is medicated for such seizures.                      She has
also been diagnosed with mild left-side hemiparesis.


        Most of the complaints as to Kimberly's physical and mental condition
are supplied by Miner.         The district court found that Miner was not a
credible witness, in that "[a]t every opportunity she attempted to maximize
her   claim.     Her     characterization     of    Kimberly's    condition       was   often
exaggerated.     While Kimberly did have a slight left hemiparesis, she had
no seizure disorder reported except from her mother."              Dist. Ct. op. at 5.



        Dr. Barbara Geller, a child psychologist, opined that




                                            -3-
Kimberly's PDD is not the result of any birth trauma and noted generally
that PDD occurs in normal births where there is no trauma.       Dr. Geller
stated that Kimberly's PDD is a minor variation and noted that Kimberly is
functioning well in school.      Kimberly's Head Start teacher stated that
Kimberly was happy, eager to learn, exhibited no strange behavior, and was
an average student.   The teacher never observed a seizure and did not have
to administer medication for seizures.


                                     II.


     The district court held that Miner failed to establish (1) that the
United States breached its duty of care in relation to Kimberly's delivery,
and (2) that the actions or inaction of the government were the proximate
cause of Kimberly's condition.   While the conclusion that the United States
did not breach its standard of care is questionable, we do not discuss this
portion of the argument because we conclude that Kimberly's condition is
not the proximate result of the United States' actions or inaction.


     Questions of proximate cause are to be determined by the trier of
fact and thus are reviewable under a clearly erroneous standard.     Nelson
v. Nelson Cattle Co., 513 N.W.2d 900, 903 (S.D. 1994).


     Miner argues that the violation of the standard of care was the
proximate cause of the injuries Kimberly sustained.      Appellant's expert
testified that as a result of the attempted mid-forceps delivery, Kimberly
suffered a skull fracture and the resulting neurological deficits were
caused by the birth trauma.


     The district court found that Miner failed to establish that either
the injuries Kimberly suffered at birth, or the actions or inaction of the
United States, Dr. Upell, or any other employee, caused Kimberly's PDD,
possible seizure disorder, or mild left-hemiparesis.     We agree.




                                     -4-
        The medical records indicated that other than the skull fracture and
bruising on her eye and scalp, Kimberly appeared to be a normal, healthy
baby.    Her apgar scores were normal at birth and her post-delivery progress
was normal.    Dr. Isburg, a pediatrician, testified that skull fractures are
not uncommon in normal deliveries and that Kimberly's skull fracture was
not related to her brain injury.     Dr. Kelts, a board-certified pediatric
neurologist who treated Kimberly as a consulting physician, also testified
that the skull fracture did not cause any internal brain injury and was not
the cause of Kimberly's mild left hemiparesis.


        After reviewing the results of an MRI examination, Dr. Sharon Byrd,
a board-certified pediatric neurologist, testified that there were two
separate injuries to the brain:     one was a minimal linear skull fracture
that occurred at birth; the second was a significant event that caused
injury to the brain prenatally sometime between the 20th and 35th weeks of
gestation, which coincides with the time period when Miner was abused by
her husband and involved in the car accident.     According to Dr. Byrd, the
prenatal brain injury was an infarct, or damage to the deep white matter
of the brain caused by lack of oxygen or blood.      Because it involved the
deep area of the brain, the injury had to have occurred earlier in
gestation, and not at the time of delivery.   Dr. Byrd stated that this type
of prenatal event to the deep white matter can result in paresis and/or
seizure disorder and that Kimberly's symptomatology was consistent with
such a prenatal event.       Both Dr. Byrd and Dr. Prensky, a pediatric
neurologist, agreed that there was no damage to the cortical, or surface
area of the brain, thereby ruling out any injury at the time of delivery.
Dr. Byrd concluded that the skull fracture did not correlate in any way
with the prenatal brain injury she observed.


        Based on the evidence presented at trial, we conclude the district
court did not err in concluding that Miner failed to establish that
Kimberly's injuries were the proximate result of the




                                     -5-
United States' actions.


                                     III.


     Trial was set for March of 1995, and on December 19th, 1994, the
government moved to supplement their designation of expert witnesses,
adding Dr. Sharon Byrd.    Because of delays in obtaining discovery by the
government, the district court allowed the government to belatedly add Dr.
Byrd to its list of designated experts.     Because Dr. Byrd would testify
that Kimberly's brain damage had occurred between the 20th and 35th weeks
of gestation, and not at birth, on February 28, 1995, Miner moved the court
to supplement the designation of expert witnesses to add Dr. Charles Truwit
to rebut that testimony.   This motion was granted and Dr. Truwit was added
to the list of designated experts.


     Also in the same February 28, 1995 motion, Miner sought to designate
Dr. Larry Burd to rebut the opinion of certain government experts to the
effect that PDD has no known etiology of brain trauma.     The court denied
this motion to supplement, concluding that Miner had already designated Dr.
Sharon Satterfield, a psychologist who had diagnosed Kimberly as suffering
from PDD and who was listed as an expert to testify regarding the subject
of PDD.   The court concluded that Dr. Burd's testimony would be duplicative
of those witnesses previously designated.    This court will not reverse a
district court's decision regarding discovery absent a "gross abuse of
discretion resulting in fundamental unfairness in the trial of the case."
Derby v. Godfather's Pizza, Inc., 45 F.3d 1212, 1215 (8th Cir. 1995).   The
district court did not abuse its discretion in any of the contested
discovery rulings.
                                     IV.


     Based on the foregoing, the judgment of the district court is
affirmed.




                                     -6-
A true copy.


     Attest:


           CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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