                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 06-3691
                                     ___________

Angel Dawn Dixon, a minor child         *
by and through her natural mother,      *
Misty Atkinson as next friend and       *
natural guardian; Misty Atkinson,       *
                                        *
             Appellants,                *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska.
Crete Medical Clinic, P.C.; Russell     *
Ebke, M.D.; City of Crete, Nebraska;    *
Crete Municipal Hospital; Crete Area *
Medical Center, a non-profit            *
corporation and subsidiary of           *
BryanLGH Health Systems, Inc.,          *
                                        *
             Appellees.                 *
                                   ___________

                             Submitted: April 13, 2007
                                Filed: August 17, 2007
                                 ___________

Before MELLOY, BOWMAN, and GRUENDER, Circuit Judges.
                         ___________

BOWMAN, Circuit Judge.

       Misty Atkinson and her minor daughter, Angel Dixon (collectively, the
Plaintiffs), sued the City of Crete, Nebraska; Crete Medical Clinic; Crete Municipal
Hospital; Crete Area Medical Center; and Dr. Russell Ebke (collectively, the
Defendants) under Nebraska law,1 alleging that the Defendants were negligent in
providing the prenatal, labor and delivery, and post-delivery treatment associated with
the birth of Angel Dixon on May 13, 1998. Pursuant to 28 U.S.C. § 636 and with the
consent of the parties, the matter was tried before a Magistrate Judge,2 who granted
judgment in favor of the Defendants. The Plaintiffs appeal, and we affirm.

       On December 1, 1997, Misty Atkinson learned that she was pregnant with
Angel. On December 16, 1997, Dr. Ebke, a family-practice physician with training
and experience in obstetrics and gynecology, examined Atkinson and noted that she
was fifteen years old, stood five feet tall, weighed 142 pounds, and was roughly four
months' pregnant. After a physical examination, Dr. Ebke concluded that Atkinson's
pelvis was of adequate size and shape for a vaginal delivery. During this visit,
Atkinson admitted to Dr. Ebke that she had smoked cigarettes, consumed alcohol, and
used illegal drugs prior to her pregnancy, but she denied having engaged in any of this
behavior after learning that she was pregnant.

       Over the course of her pregnancy, Atkinson gained a significant amount of
weight, which led Dr. Ebke on April 27, 1998, to recommend bed rest for Atkinson
for the remainder of her pregnancy. Tests conducted on April 30 for pregnancy-
induced hypertension were negative, and Dr. Ebke scheduled Atkinson for induction
of labor to begin on May 12, 1998.

      When she arrived at Crete Municipal Hospital for the delivery, Atkinson was
briefed on the labor-induction process. Upon her admission, Atkinson asked a
member of the nursing staff about a cesarean delivery, remarking that she "just


      1
       Nebraska Hospital-Medical Liability Act, Neb. Rev. Stat. §§ 44-2801 to 44-
2855; Political Subdivisions Tort Claims Act, id. §§ 13-901 to 13-926.
      2
        The Honorable Thomas D. Thalken, United States Magistrate Judge for the
District of Nebraska.

                                         -2-
want[ed] to get it over with because [she] was really nervous" about the pain
associated with a vaginal delivery. Tr. at 349. After a consultation with Dr. Ebke,
during which he described his plan to conduct a trial induction of labor and to perform
a cesarean only if the trial labor failed, Atkinson agreed to the induction, which Dr.
Ebke commenced at 8:10 a.m. on May 12. At 2:00 p.m., Dr. Ebke checked Atkinson's
progress; noted that it was normal; and ordered the administration of Pitocin, a drug
used to induce labor or enhance a labor pattern. Atkinson testified that after the Pitocin
was administered, she again requested a cesarean delivery because of painful
contractions. At 4:50 p.m., Dr. Ebke heard a report from hospital staff regarding
Atkinson's progress and ordered that the Pitocin be discontinued overnight so
Atkinson could rest before the induction of labor was resumed the following day.

       The next morning at 7:40, Dr. Ebke conducted another vaginal exam of
Atkinson, noting that dilation had progressed to three centimeters and that effacement
was at ninety percent. Because Atkinson's labor was progressing normally, Dr. Ebke
proceeded to rupture Atkinson's uterine membranes (i.e., he broke her water), and he
attached an electrode to Angel's scalp in order to monitor her heart rate throughout the
remainder of the labor and delivery process. Dr. Ebke re-initiated the Pitocin at 7:50
a.m. on May 13, and he increased the Pitocin dosage at 9:00 a.m. Atkinson testified
that after her water was broken, her contractions worsened and she again requested
that a cesarean delivery be performed. Atkinson also testified that she requested an
epidural, which was provided.

       At 10:30 a.m., Dr. Ebke was updated on Atkinson's progress, including that the
fetal heart rate (FHR) was elevated.3 Dr. Ebke was not alarmed by the FHR, however,

      3
        The normal range for an FHR is between 110 and 160 beats per minute. Tr.
at 432. An FHR above 170 is considered mild tachycardia, while an FHR above 180
or 200 is considered severe tachycardia and may be a cause for alarm. Tr. at 676, 741.
Fetal tachycardia may be caused by hypoxia, or low blood-oxygen delivery to the
baby; maternal tachycardia; maternal fever or infection; or maternal anxiety. Tr. at
434, 676, 741–42, 1062.

                                           -3-
because other factors, including acceptable short-term variability, indicated to him that
the baby was not experiencing hypoxia. In addition, Dr. Ebke was aware that
Atkinson continued to be fairly agitated and upset, which may have caused an increase
in the FHR. At 10:40 a.m., the Pitocin was temporarily discontinued to allow
Atkinson a brief respite from her contractions. A vaginal examination conducted by
Dr. Ebke at 10:50 a.m. showed progress in dilation; thereafter, pain medication was
administered and the Pitocin was restarted. At 11:40 a.m., Atkinson was upset and
crying, and she stated to one of the nurses, "I can't do this anymore." Tr. at 756. This
comment was noted in Atkinson's chart, but there was no indication in the chart that
Atkinson had demanded a cesarean delivery in conjunction with the complaint. At
11:50 a.m., the FHR was still periodically reaching the 160s. At noon, the Pitocin was
halted.

       At 12:15 p.m., a member of the nursing staff reported to Dr. Ebke that Atkinson
was exhibiting a "dysfunctional labor pattern" because the Pitocin had been stopped
and restarted a number of times. At 12:55 p.m., Dr. Ebke reviewed the FHR himself
and assessed the overall clinical situation, concluding that Atkinson was experiencing
a great deal of anxiety but that the FHR was reassuring and short-term variability was
acceptable. From 12:00 p.m. until 2:00 p.m., the nursing staff noted seven out of eight
fifteen-minute periods with good variability, but they also noted questionable late
decelerations in the FHR at 11:45 a.m. and at 2:00 p.m. Because a brief, late
deceleration may be caused by, among other factors, epidural placement, maternal
movement or repositioning, or fluid shifts, neither Dr. Ebke nor the nursing staff was
concerned by these episodes. See Tr. at 772. Atkinson's vaginal examinations during
this period showed that dilation had progressed from five to six centimeters and that
effacement had reached one hundred percent. At 2:00 p.m., Dr. Ebke was notified that
Atkinson was resting more comfortably and that her contractions were approximately
five minutes apart. Dr. Ebke ordered that the Pitocin be resumed at a low level.

       From 2:30 p.m. until delivery, Atkinson's labor-progress chart showed positive
short-term variability and average to increased long-term variability. The FHR

                                          -4-
increased from 160 to between 165 and 170 during one fifteen-minute period, but the
elevation resolved. Because variability remained positive, the nursing staff did not
believe that the brief episode of FHR elevation warranted a call to Dr. Ebke. From
2:30 p.m. onward, Atkinson had "very good progression" of labor. Tr. at 854.

          Once the pushing phase of her labor began, Atkinson protested, "[G]et it out
. . . I [can't] handle it anymore." Tr. at 351; see also Tr. at 842, 856. The nursing staff,
however, did not believe that Atkinson's complaint amounted to a request for a
cesarean delivery. Rather, the staff believed that Atkinson was expressing the fear,
anxiety, and pain frequently expressed during a typical vaginal delivery.

       At about 3:30 p.m., Dr. Ebke arrived in the delivery room after having been
informed that Atkinson was completely dilated. Based on his opinion that Atkinson's
labor pattern was acceptable and on his earlier physical examinations, Dr. Ebke was
not concerned about a condition called cephalopelvic disproportion (CPD), where a
baby's head is too large to descend safely through the mother's pelvis. By 4:50 p.m.,
Atkinson had stopped pushing effectively so Dr. Ebke determined that a vacuum
extractor should be utilized to aid in completing the delivery. After Angel's head
began crowning, Dr. Ebke positioned the vacuum extractor on Angel's head. Dr. Ebke
then waited for a contraction and, with a single pull, delivered Angel's head. Tr. at
1028–29. Meconium4 was observed on Angel's nose and mouth, which Dr. Ebke
removed by suction before continuing with the delivery.

       At this point, Dr. Ebke experienced some difficulty in delivering Angel's body,
and he instructed the nurses to re-position Atkinson, thus allowing additional space
in the birth canal to deliver Angel's shoulders. Dr. Ebke delivered Angel at 4:54 p.m.
on May 13, 1998, and she weighed six pounds, six ounces. Immediately after her
birth, Angel had trouble breathing. Because Dr. Ebke had already removed visible

       4
       Meconium is excrement in the fetal intestinal tract that is discharged during the
delivery process.

                                            -5-
meconium from Angel's mouth and nose, he used an instrument to examine Angel's
airway below her vocal chords and remove any additional meconium she may have
aspirated. The first insertion of the instrument yielded some meconium, but the
second insertion was clean. As a precaution, Dr. Ebke applied a device to push
additional oxygen into Angel's lungs, but Angel was stable and was breathing on her
own. Angel's one-minute Apgar5 score was three, while her five-minute Apgar score
was seven. Angel was provided enriched oxygen and was transported to the nursery.
Because meconium was present below Angel's vocal chords and because she
continued to experience periods of rapid breathing, Dr. Ebke directed that Angel be
transferred to St. Elizabeth's Hospital, which was equipped to provide more
specialized care.

       In the meantime, the nursing staff had prepared Atkinson's placenta for delivery
to the laboratory. The staff noted that the placenta appeared abnormal, with an
umbilical cord that was small in diameter. The medical records also noted that Angel
experienced "trauma" during the delivery. Tr. at 429–30. This comment was based
on Angel's "large caput"—the overlapping of the baby's skull bones caused by the
forces of labor during a vaginal delivery. Tr. at 430; 672–73. While some swelling
of the scalp and overlapping of the skull bones are normal for a baby of a first-time
mother, Tr. at 431, 673, a large caput is also consistent with CPD, Tr. at 432.

        On November 26, 2006, the Plaintiffs filed a lawsuit, claiming that Dr. Ebke
was negligent by 1) failing to consider or act on Atkinson's requests for a cesarean
delivery, 2) failing to recognize that fetal distress and maternal labor patterns indicated
that a cesarean delivery was medically required, and 3) performing a vacuum delivery


      5
      An Apgar score, ranging from zero to ten, is used to assess the health of a
newborn immediately after childbirth. An Apgar score of three is not considered
unusual for a newborn who has aspirated meconium and a score of seven is considered
normal for a newborn. Tr. at 1119–20.


                                           -6-
rather than a cesarean delivery. In addition, the Plaintiffs claimed that the other
Defendants, through their employees, breached the applicable standard of care by
failing to identify the fetal distress and failing to notify Dr. Ebke or the chain of
command that a cesarean was medically necessary.

       In support of their claims, the Plaintiffs presented testimony from, among
others, Dr. Abraham Scheer and Dr. Michael Cardwell. Dr. Scheer, a pediatric and
adult neurologist, analyzed Angel's medical records, reviewed a neurosurgical
consultation report, and conducted a neonatal neurological examination of Angel two
days after her birth. Testifying as Angel's treating physician and as an expert witness,
Dr. Scheer stated that Angel's face was bruised and swollen upon her admission to
St. Elizabeth's and that her head circumference was normal. Dr. Scheer recommended
that Angel remain in the neonatal intensive-care unit (NICU) at St. Elizabeth's for
continued observation. Dr. Scheer testified that upon her admission to St. Elizabeth's,
Angel appeared to have aspirated meconium, suffered seizures, probably lost oxygen
to her brain (a condition called "hypoxic encephalopathy"), and sustained a head
fracture that may have been the cause of her seizures. Tr. at 63. Dr. Scheer also noted
that Angel was "not fixing and following" and was "very, very floppy." Tr. at 68–69.
He suggested these symptoms could be attributable to the head fracture, the anti-
seizure medication, the hypoxic encephalopathy, or the meconium aspiration. Tr. at
71. His review of the FHR monitoring strips led Dr. Scheer to opine that over the
course of labor and delivery, Angel had suffered some oxygen deprivation as reflected
by the periods of tachycardia in the monitoring strips.

       Dr. Scheer examined Angel again on July 16, 1998. An MRI revealed atrophy,
or shrinkage, in the right hemisphere of Angel's brain, a condition Dr. Scheer testified
was consistent with hypoxia. Another MRI on April 28, 1999, indicated to Dr. Scheer
that the left hemisphere of Angel's brain was growing normally, while the right
hemisphere continued to appear atrophied and exhibited hygromas, or fluid-filled
areas. Dr. Scheer concluded that Angel had cerebral palsy. Tr. at 129.


                                          -7-
       On June 1, 2000, Dr. Scheer noted that Angel was severely
microcephalic—Angel's head circumference was abnormally small, typically
signifying developmental difficulties and mental retardation. Tr. at 130–31. Dr.
Scheer testified that microcephaly may be caused by, among other factors, genetic,
anatomical, or metabolic problems; hypoxia; and maternal drug use. Tr. at 182–83.
Dr. Scheer did not rule out a stroke or stroke-like event as the cause of Angel's
microcephaly. Tr. at 129. On November 6, 2000, Dr. Scheer confirmed that Angel
remained microcephalic and that the circumference of her head was significantly
below normal. Tr. at 133, 135–37.

       Dr. Scheer testified that in his opinion, the suction from the vacuum extractor
used to remove Angel from the birth canal as well as the trauma and hypoxia Angel
experienced during the labor and delivery process caused her neurological condition.
Tr. at 167–172. He attributed Angel's neurological condition to the Defendants'
negligence. Dr. Scheer opined that had Angel been delivered by cesarean, her head
size would be normal as would her growth and development. Tr. at 168.

       Dr. Cardwell, an obstetrician-gynecologist and perinatology specialist, reviewed
the medical records and the various depositions related to the labor and delivery
treatment provided by the Defendants. Dr. Cardwell testified that Atkinson had a
protracted active phase of labor because she was slow to dilate, a factor that may
signal CPD. Tr. at 427. According to Dr. Cardwell, the FHR monitoring strips
recorded during Atkinson's labor began to show a non-reassuring pattern. Specifically,
Dr. Cardwell interpreted the FHR monitoring strips as showing tachycardia and
decreased variability at approximately 12:30 p.m. on May 13, indicating that at that
point Dr. Ebke should have known a cesarean delivery was required. Tr. at 428. Dr.
Cardwell testified that Dr. Ebke violated the standard of care by 1) failing to consider
or act on Atkinson's request for a cesarean delivery; 2) failing to recognize that
Atkinson's protracted active phase of labor, the slow descent of the baby through the
birth canal, and the non-reassuring FHR all suggested that a cesarean delivery was
medically indicated; 3) attempting a vacuum delivery instead of the medically

                                          -8-
indicated cesarean delivery; and 4) failing to call a pediatrician to attend to Angel
based on the non-reassuring FHR and the presence of meconium at delivery. Tr. at
442–43, 445. Likewise, Dr. Cardwell testified that the nursing staff (and the hospital
through its nursing staff) had a duty to notify Dr. Ebke about Atkinson's requests for
a cesarean delivery and should have recognized that the protracted active labor and
non-reassuring FHR were reasons to either insist that Dr. Ebke perform a cesarean
delivery or notify the chain of command that Dr. Ebke refused to perform a cesarean
delivery. Tr. at 449–52.

       To rebut the Plaintiffs' claims, the Defendants presented the testimony of Nurse
Martha Graf, Dr. James Elston, Dr. Michael Levine, Dr. John MacDonald, and Dr.
Gerald Bradley Schaefer. Nurse Graf, a registered nurse certified in obstetric nursing,
maternal/newborn nursing, and fetal monitoring, reviewed the Plaintiffs' medical
records and the deposition testimony of several witnesses. She opined that the nursing
staff providing Atkinson's labor and delivery care satisfied the applicable standard of
care. Nurse Graf testified that members of the nursing staff are responsible for
monitoring a baby's heart-rate variability during the labor and delivery process.
Moderate variability indicates to the staff that the baby's brain is well-oxygenated,
while minimal variability should alert nursing staff to a potential problem with
oxygenation. Tr. at 904–05. The nursing staff also monitors the FHR. According to
Nurse Graf, acceleration occurs if the FHR exceeds 160 for less than ten minutes, and
it may be caused by maternal temperature, maternal or fetal activity, or stress to the
mother or fetus. Tr. at 906. Tachycardia occurs if the FHR exceeds 160 for longer
than ten minutes, and it also may be caused by maternal factors. If the FHR reaches
180 to 200, the nursing staff should be concerned about the baby's condition. After
reviewing the medical charts and the FHR monitoring strips, Nurse Graf testified that
although there were periods when Angel's FHR was above 160, there was no reason
for concern because the episodes were brief and could be explained by the total
clinical picture—specifically, that Atkinson was feverish or anxious during those
periods. Tr. at 909–10. Likewise, the periods of deceleration were not alarming in
Atkinson's case given the total clinical picture. Tr. at 911. Nurse Graf testified that

                                         -9-
the assistance given to Dr. Ebke by the nursing staff in placing and operating the
vacuum extractor was within the applicable standard of care. Tr. at 924–25. Nurse
Graf's review of Atkinson's labor-process chart revealed that Atkinson's labor was
shorter than average for a first-time mother and would not have caused her any
concern. Tr. at 919–21. Nurse Graf also testified that in her clinical experience,
mothers typically complain about their inability to continue with the labor process on
account of pain, exhaustion, anxiety, and fear—particularly when the labor process
has advanced almost to delivery. Tr. at 915–16. The nursing staff is trained to offer
the mother pain control, reassurance, and encouragement during this period of labor.
Tr. at 916. Based on her review of the medical records, Nurse Graf found no evidence
that the nursing staff should have suggested to Dr. Ebke that a cesarean delivery was
necessary or that the nursing staff should have invoked the chain of command. Tr. at
922–23.

        Dr. Elston, an obstetrician-gynecologist emeritus with training and experience
in performing vaginal and cesarean deliveries, diagnosing CPD, and using vacuum
extractors, testified that the FHR monitoring strips revealed variability and FHR over
the course of the labor and delivery "within normal limits" that did "not indicate any
fetal jeopardy or problem." Tr. at 696. Dr. Elston explained that the FHR is affected
by, for example, medications, maternal contractions, and maternal activity or
inactivity. During some periods when Angel's FHR was elevated, Atkinson's heart
rate was also elevated. Tr. at 680, 741–42. Dr. Elston also concluded that Angel did
not suffer from hypoxia because the umbilical cord pH was normal, Angel's five-
minute Apgar score was normal, and Angel did not experience the multiple-organ
impairment typically associated with hypoxia. Tr. at 663. In Dr. Elston's opinion,
Atkinson's labor was not protracted because it was shorter than would be expected for
a first-time mother with an epidural. Moreover, Dr. Elston opined that Dr. Ebke's use
of the vacuum extractor was appropriate given that Atkinson was complaining of pain
and exhaustion and Angel was well-positioned along the birth canal. Tr. at 710–12.
Based on his review of the medical evidence and on his training and experience, Dr.
Elston ultimately concluded that Dr. Ebke and the nursing staff met the applicable

                                        -10-
standards of care in treating the Plaintiffs and that the Defendants had no duty to
perform a cesarean delivery in the circumstances. Tr. at 702–03, 705–06.

        Dr. Levine, a maternal-fetal medicine specialist with training and experience
in treating problem pregnancies and in interpreting FHR monitoring strips, also
reviewed the medical records and depositions. Dr. Levine analyzed the FHR
monitoring strips and concluded that although periods of minimal, moderate, and
marked variability were present, the majority of the monitoring strips showed
moderate variability, which is preferred. Tr. at 1057, 1059–60. Dr. Levine did not
identify any portion of the monitoring strips that would indicate to him a cesarean
delivery was necessary. Tr. at 1060. According to Dr. Levine, the FHR monitoring
strips, although exhibiting some periods of mild tachycardia and some problematic
patterns, would not have caused him concern. Dr. Levine testified that Atkinson's
dilation proceeded normally given that the Pitocin was started and stopped more than
once. Based on his assessment of the FHR, variability, and labor progression (as
measured by dilation and Angel's movement through the birth canal), Dr. Levine
opined that Dr. Ebke and the nursing staff met applicable standards of care and at no
time was a cesarean delivery necessary. Tr. at 1074. Dr. Levine testified that Dr.
Ebke properly used the vacuum extractor based on Atkinson's complaints of
exhaustion and the ineffectiveness of her pushing. Tr. at 1083–84.

      Dr. MacDonald, a pediatric neurologist, diagnoses, treats, and searches for the
cause of neurological problems in his patients. Dr. MacDonald reviewed the medical
records (including the prenatal and ongoing treatment records for Angel), as well as
reports and depositions of experts, treating physicians, and other witnesses. In Dr.
MacDonald's opinion, Angel's neurological problems could not be attributed to the
labor and delivery care provided by the Defendants. Tr. at 786. Rather, Dr.
MacDonald testified that Angel's problems may have been caused by Atkinson's drug
use during the first trimester of her pregnancy or by a viral infection contracted by
Atkinson and passed to Angel just prior to Angel's birth. Tr. at 788–91. Dr.
MacDonald testified that a number of viruses can cause damage to a fetus or

                                        -11-
exacerbate a pre-existing disorder. Tr. at 790. After reviewing a May 14, 1998,
analysis of Angel's spinal fluid, Dr. MacDonald testified that Angel's white blood cell
count was 101. Tr. at 791. According to Dr. MacDonald, a normal white blood cell
count for a newborn would have been 20 to 25 and a count above 30 would have been
a cause for concern. Tr. at 792. A second spinal-fluid analysis on May 26, 1998,
showed a normal white blood cell count. Tr. at 792. Dr. MacDonald concluded from
this evidence that Angel had an infection of the nervous system. Tr. at 791. Dr.
MacDonald also testified that seizures like those suffered by Angel may be a sign of
meningitis or encephalitis. Tr. at 791. In addition, Dr. MacDonald testified that
Angel may have inherited a blood coagulation disorder, which may have caused one
stroke-like event just prior to her birth and another such event in 2003. Tr. at 794–99,
802–03, 808–10. According to Dr. MacDonald, a stroke-like event could cause
neurological symptoms that are limited to one side of the brain, as in Angel's case. Tr.
at 794. Dr. MacDonald testified that the MRI taken of Angel's brain when she was
two months' old is consistent with his conclusion. Tr. at 796, 803. In contrast, an
injury due to hypoxia would affect blood flow to both sides of the brain. Tr. at
806–07. In short, Dr. MacDonald opined that the evidence of Atkinson's illness before
labor and the analyses of Angel's spinal fluid suggested that a viral infection was
either a major or contributing cause of Angel's neurological condition and that a
blood-coagulation disorder may also have contributed to a stroke-like event causing
Angel's injuries. Tr. at 793, 797–99.

      Dr. Schaefer, a professor of pediatrics who is certified in clinical genetics,
pediatrics, and pediatric endocrinology, reviewed the medical records and testimony,
conducted a medical examination of Angel, and had blood samples from Angel and
Atkinson analyzed. According to Dr. Schaefer, Angel's neurological condition was
not due to the labor and delivery treatment provided by the Defendants, but to a
combination of genetic and environmental factors including: 1) prenatal exposure to
multiple teratogens, such as drugs, chemicals, or infections that can cause birth
defects; 2) two specific genetic mutations; and 3) a family history of certain
physiological problems, including a possible blood-coagulation disorder. Tr. at 1191,

                                         -12-
1193, 1197–1201. Dr. Schaefer considered particularly important Atkinson's earlier
miscarriages, her blood-clotting disorder, the abnormality of the placenta, and studies
showing that Angel suffered a stroke-like event around the time of her birth. Tr. at
1193, 1195–1201.

       Following the bench trial, the Magistrate Judge ruled in favor of the
Defendants, finding that the Plaintiffs "failed to establish . . . that they sustained any
injuries due to a breach of the standard of care by the defendants." Mem. & Order of
Sept. 20, 2006, at 32 (Mem. & Order). In reaching this conclusion, the Magistrate
Judge credited "the testimony of the defendants' witnesses and expert witnesses about
the nature and causes of [Angel's] . . . injuries." Id.

       On appeal, the Plaintiffs first argue that the Magistrate Judge erred when he
"entered judgment in favor of" the Defendants. Br. of Appellants at 17. Although it
is not altogether clear from their brief, the thrust of the Plaintiffs' first argument
appears to be that the Magistrate Judge made a number of errors in his factual
findings. Findings of fact, whether based on testimony, documentary evidence, or
inferences from other facts, will not be set aside unless they are clearly erroneous.
Fed. R. Civ. P. 52(a); Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574
(1985). "A finding is 'clearly erroneous' when although there is evidence to support
it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed." United States v. United States
Gypsum Co., 333 U.S. 364, 395 (1948). If the factfinder's account of the evidence "is
plausible in light of the record viewed in its entirety," we will not reverse even if we
would have viewed the evidence differently had we been sitting as the trier of fact.
Anderson, 470 U.S. at 574. "Where there are two permissible views of the evidence,
the factfinder's choice between them cannot be clearly erroneous." Id. If a factual
finding is supported by substantial evidence on the record, it is not clearly erroneous.
Robinson v. Geico Gen. Ins. Co., 447 F.3d 1096, 1101 (8th Cir. 2006).



                                          -13-
      In a medical malpractice action under Nebraska law, the plaintiff bears the
burden of establishing "the generally recognized medical standard involved; that there
was a deviation from that standard by the defendant; and that such deviation was the
proximate cause of plaintiff's injury." Saporta v. State, 368 N.W.2d 783, 786 (Neb.
1985) (per curiam) (quoting Anderson v. Moore, 275 N.W.2d 842, 849 (Neb. 1979)).
"[T]he ultimate determination of whether a party deviated from the standard of care
and was therefore negligent is a question of fact." Cerny v. Cedar Bluffs
Junior/Senior Pub. Sch., 628 N.W.2d 697, 704–05 (Neb. 2001).

       The Plaintiffs argue that the Defendants breached the applicable standard of
care by refusing to grant Atkinson's repeated requests for a cesarean delivery. The
Magistrate Judge found, however, that after a consultation with Dr. Ebke and the
nursing staff, Atkinson consented to the induction of labor and a vaginal delivery. Her
complaints to the nursing staff to "just take it out" because she "c[ould]n't do this"
were uttered during particularly painful, high-stress periods of the labor and delivery
process, and these comments could not reasonably be construed as requests for a
cesarean delivery. Nurses Yank and Graf testified that it is very common for women
in labor to make remarks or demands like Atkinson's and that such statements do not
compel a cesarean delivery in response. Tr. at 857, 916. Moreover, the Magistrate
Judge noted there was no evidence that Atkinson renewed her demands for a cesarean
delivery during less stressful periods of her labor. Finally, Dr. Elston testified that the
Defendants met the standard of care regarding a request for a cesarean delivery in all
respects and that the applicable standard does not contemplate "[cesarean]-section on
demand." Tr. at 653. The Magistrate Judge's finding that the Defendants "did not
breach the standard of care with regard to any request for cesarean delivery by Ms.
Atkinson" is supported by substantial evidence in the record and is not clearly
erroneous. Mem. & Order at 30.

      The Plaintiffs also argue that the Defendants breached the applicable standard
of care by failing to recognize that a cesarean delivery was medically necessary
because Atkinson's labor was not progressing and because the FHR monitoring strips

                                           -14-
showed that Angel was in distress. According to the Plaintiffs, the Magistrate Judge
clearly erred by finding otherwise. The Magistrate Judge found that Atkinson's labor
pattern was not unusual as compared with other first-time mothers and that the
monitoring strips evidenced an FHR within normal ranges. These findings were based
on evidence that Dr. Ebke and the nursing staff closely monitored Atkinson's labor
progress and charted the duration of her labor, the descent of the fetus through the
birth canal, and the FHR as measured by the monitoring strips. Based on the
testimony at the bench trial, the Magistrate Judge found that these measurements,
which were influenced by the use of Pitocin, maternal stress, and the administration
of medications to address Atkinson's complaints of pain, were within normal ranges
in those circumstances. Dr. Elston testified that 1) the FHR monitoring strips were
within normal limits and did not indicate any fetal distress, 2) the duration of
Atkinson's labor was well below average, 3) the progress of labor was acceptable, and
4) the nursing staff accurately interpreted the FHR monitoring strips. Tr. at 696–701.
Nurse Graf testified that Atkinson's labor was not protracted and that the brief periods
of fetal tachycardia were likely due to maternal anxiety. Tr. at 917, 921. Dr. Levine
disputed the Plaintiffs' experts' interpretation of the FHR monitoring strips, opining
that he had reviewed strips of a similar nature "on a regular basis with no evidence of
concern." Tr. at 1060. With respect to the progress of labor and the FHR monitoring
strips, Dr. Elston, Dr. Levine, and Nurse Graf all testified that the Defendants met the
standard of care throughout the labor and delivery process. Tr. at 662, 718, 1052–53,
1071, 901. The Magistrate Judge's finding that the Defendants "did not breach the
standard of care by failing to recognize a cesarean delivery was medically indicated
by Ms. Atkinson's labor pattern and fetal distress" is supported by substantial evidence
in the record and is not clearly erroneous. Mem. & Order at 31.

       The Plaintiffs also claim that Dr. Ebke breached the applicable standard of care
by performing a vacuum delivery rather than a cesarean delivery. The Magistrate
Judge disagreed, finding that "[a] cesarean delivery was not medically indicated by
the length of labor, descent of the baby, fetal heart rates, fetal condition known to the
care givers or maternal condition." Id. at 31. The Magistrate Judge also found that

                                          -15-
the Plaintiffs failed to establish that Dr. Ebke's technique in utilizing the vacuum
extractor breached the standard of care. Id. In making these findings, the Magistrate
Judge specifically "credit[ed] and believe[d] the testimony of the defendants'
witnesses and expert witnesses over the plaintiffs' witnesses, where the witnesses were
inconsistent." Id. The Defendants' experts included Dr. Elston, who stated that there
was nothing in Atkinson's chart indicating that the vaginal delivery should have been
abandoned in favor of a cesarean delivery, Tr. at 716, 742, and Dr. Levine, who
testified that the Defendants "met the standard of care . . . during the . . . immediate
delivery with vacuum extractor and then the resuscitation of meconium aspiration in
the delivery room," Tr. at 1052. The Magistrate Judge's finding that Dr. Ebke did not
breach the standard of care in performing a vacuum delivery is supported by
substantial evidence in the record and is not clearly erroneous.

       Finally, the Plaintiffs contend that the only credible explanation for Angel's
neurological condition is the explanation advanced by their expert witnesses, namely
that Angel's condition is a direct result of the Defendants' negligence during the labor
and delivery process. According to the Plaintiffs, then, the Magistrate Judge erred
when he found that the Plaintiffs failed to meet their burden of proof regarding the
proximate cause of Angel's condition. Crediting the Defendants' evidence, the
Magistrate Judge found that Angel's condition was likely the result of "environmental
and genetic factors," rather than "the care received during labor and delivery." Mem.
& Order at 32. The evidence in support of the Magistrate Judge's finding includes
1) Dr. Elston's testimony that the cause of Angel's condition was not a problem during
delivery and that Angel's condition did not fall within professional guidelines for
hypoxia, Tr. at 663, 715; 2) Dr. MacDonald's testimony that the treatment provided
before, during, and after labor and delivery did not contribute "at all" to Angel's
condition and that her condition was not associated with hypoxia during labor and
delivery but with a stroke-like event shortly before delivery, Tr. at 786, 789, 811; and
3) Dr. Levine's testimony that he did not identify any evidence of fetal hypoxia on the
FHR monitoring strips, Tr. at 1081–82. Although the Plaintiffs and their experts
attributed Angel's condition to the Defendants' negligence during the labor and

                                         -16-
delivery process, the Defendants and their experts presented ample evidence to refute
the Plaintiffs' claims. The Magistrate Judge's choice between two permissible views
of the evidence cannot be clearly erroneous. See Anderson, 470 U.S. at 574. The
Magistrate Judge's finding that the Plaintiffs failed to carry their burden regarding
proximate cause is supported by substantial evidence in the record and is not clearly
erroneous.

       The Plaintiffs have demonstrated, at most, that they disagree with the
Magistrate Judge's factual findings, but they have fallen far short of demonstrating
that those factual findings were clearly erroneous. "[W]hen a trial judge's finding is
based on his decision to credit the testimony of one of two or more witnesses, each of
whom has told a coherent and facially plausible story that is not contradicted by
extrinsic evidence, that finding, if not internally inconsistent, can virtually never be
clear error." Anderson, 470 U.S. at 575. We reject the Plaintiffs' arguments regarding
the Magistrate Judge's factual findings.

       The Plaintiffs' next argument on appeal is that the Magistrate Judge erred by
"rel[ying] upon opinions which were not to a reasonable degree of medical certainty"
in making his findings regarding the proximate cause of Angel's injuries. Br. of
Appellants at 25. The Plaintiffs offer several examples of expert testimony that they
contend "did not have the appropriate degree of definiteness" to merit the Magistrate
Judge's reliance. Id. The Plaintiffs submit no evidence, however, that they objected
during the bench trial to the testimony about which they now complain. "The failure
to object to an[] error . . . leaves the appellate court with the power to notice only plain
error." Rahn v. Hawkins, 464 F.3d 813, 819 (8th Cir. 2006). Under plain error
review, an error not called to the trial court's attention by a contemporaneous objection
will be grounds for reversal only if the error prejudiced the substantial rights of a party
and would "seriously affect the fairness, integrity or public reputation of judicial
proceedings" if left uncorrected. United States v. Olano, 507 U.S. 725, 736 (1993)
(quotations omitted). Although Olano addressed plain error in the context of a
criminal proceeding, "an unpreserved error in the civil context must meet at least the

                                           -17-
Olano standard to warrant correction." Wiser v. Wayne Farms, 411 F.3d 923, 927
(8th Cir. 2005). The error alleged by the Plaintiffs is that the Magistrate Judge
considered expert medical testimony that the Plaintiffs now contend was
impermissibly speculative, but to which the Plaintiffs did not object at trial. Assuming
for the sake of argument that the Magistrate Judge's reliance on this expert testimony
was plain error, holding Plaintiffs accountable for their decision not to object to the
testimony would neither prejudice their substantial rights nor "seriously affect the
fairness, integrity or public reputation of judicial proceedings." Olano, 507 U.S. at
736. Accordingly, we reject the Plaintiffs' claim of error.

         The Plaintiffs next argue that the Magistrate Judge erred when he found that the
opinions of the Plaintiffs' medical experts were "lacking in foundation with regard
to . . . Atkinson's labor pattern." Mem. & Order at 31. According to the Plaintiffs,
their experts possessed the training, experience, and expertise to opine on the medical
issues in this case and the Magistrate Judge erred in concluding that their experts were
not qualified. The Plaintiffs misinterpret the Magistrate Judge's statement. Viewing
the statement in context, it is apparent that the Magistrate Judge was referring to an
absence of factual foundation for the opinions offered by the Plaintiffs' medical
experts. The Magistrate Judge was not concluding that the Plaintiffs' experts lacked
the medical training, experience, or expertise to render their opinions. In connection
with the statement regarding the Plaintiffs' experts, the Magistrate Judge found that
Dr. Ebke and the nursing staff "closely monitored" Atkinson's labor pattern, noting
that it was affected by a number of variables including maternal stress, pain
medication, and the Pitocin used to induce labor. Id. The court agreed with the
Defendants' experts that the labor pattern was not unusual compared with labor
patterns of other first-time mothers in similar circumstances. The Magistrate Judge
credited the Defendants' experts and found that the conditions during labor did not
indicate a cesarean delivery was required under the applicable standard of care.
Considering the Magistrate Judge's statement in context, it is obvious that he was
simply explaining his decision to credit the testimony of the Defendants' expert
witnesses rather than the Plaintiffs' experts with respect to Atkinson's labor pattern.

                                          -18-
As the finder of fact, it was not error for the Magistrate Judge to make this choice,
rather it was his obligation. And a factfinder's choice between "two permissible views
of the evidence . . . cannot be clearly erroneous." Anderson, 470 U.S. at 574.

        The Plaintiffs' final argument on appeal is that the Magistrate Judge erred
"when he relied on erroneous evidence which was not even contained in the record."
Br. of Appellants at 32. In the Order entering judgment in favor of the Defendants,
the Magistrate Judge stated, "Dr. Scheer testified Angel Dixon may have had a brain
infarct, or stroke, which was not ruled out as a cause of her microcephaly." Mem. &
Order at 17. In support of this statement, the Magistrate Judge cited Dr. Scheer's
deposition testimony. The Plaintiffs argue that Dr. Scheer's deposition was not part
of the record and that the Magistrate Judge erred by considering it. Assuming for the
sake of argument that the Magistrate Judge erred in considering Dr. Scheer's
deposition testimony, any such error is harmless because the opinion expressed in the
deposition was reiterated by Dr. Scheer during his testimony at the trial. Dr. Scheer
testified that Angel experienced "a left hemiparesis," or left-side paralysis, that he felt
was "secondary to an infarct, a cortical infarct," or stroke-like event. Tr. at 129.
Additionally, the medical records prepared by Dr. Scheer as Angel's treating physician
were admitted into evidence without objection, and those records indicated that Dr.
Scheer believed Angel "probably [had] a cortical infarct." App. of Appellees at 81.
Dr. MacDonald testified that in his opinion, Angel suffered a stroke in the days
immediately preceding her birth. Tr. at 795, 810. Thus, even if the Magistrate Judge
erred by relying on evidence not properly before him, there was ample evidence in the
record to support the court's findings regarding the likely cause of Angel's
neurological condition.

      For the foregoing reasons, the judgment is affirmed.
                      ______________________________




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