                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                                                                     FILED
                                                            U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                  JUNE 2, 2009
                                No. 08-15721
                                                               THOMAS K. KAHN
                            Non-Argument Calendar                   CLERK



                  D. C. Docket No. 06-00943-CV-ORL-22-KRS

MICHAEL A. VALDIVIA, JR.,
as Personal Representative of the
Estate of Michael A. Valdivia, Sr., Deceased,

                                                   Plaintiff-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                   Defendant-Appellee.



                  Appeal from the United States District Court
                      for the Middle District of Florida


                                  (June 2, 2009)

Before DUBINA, Chief Judge, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
      Appellant Michael A. Valdivia, Jr. (“Valdivia”), as personal representative

of the Estate of Michael A. Valdivia, Sr., deceased (“decedent”), brought an action

against the United States of America alleging medical malpractice under the

Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1), 2671-80 (“FTCA”).

Specifically, Valdivia, alleged that the Veterans Affairs Medical Center in Miami,

Florida (“VAMC”), through its employee medical doctors, negligently failed to

diagnose the decedent’s terminal colon cancer.

      After conducting a three-day bench trial, the district court made findings of

fact and conclusions of law. Among other things, the district court found that

VAMC violated the applicable standard of care by (1) failing to screen the

decedent for colon cancer prior to 2001 (at which time he was 69 years old), and

(2) failing to conduct follow-up testing after a fecal occult blood test (“FOBT”) on

the decedent returned a trace positive result for blood. Although the district court

found the VAMC was negligent in its care of the decedent, the court found that

neither of these breaches in care was the proximate cause of the decedent’s death.

      As is typical in medical malpractice cases, there was conflicting evidence by

experts on both sides. In the present case, the district court credited the testimony

of the government’s expert witness, board-certified colon and rectal surgeon

Michael D. Hellinger, M.D., who opined that the decedent’s cancer likely had

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arisen from a rare, “non-polypoid colorectal neoplasm, which [had] aggressively

spread to the [decedent’s] liver at an early stage.” (Doc. 66 at 9).

      The district court also explained why it had found Dr. Hellinger’s testimony

on the issue of causation more persuasive than the contrary testimony of the expert

witness who had testified on behalf of the decedent.

      “We review for clear error factual findings made by a district court after a

bench trial.” Morrissette-Brown v. Mobile Infirmary Med. Ctr., 506 F.3d 1317,

1319 (11th Cir. 2007); Fed. R. Civ. P. 52(a).

      After reviewing the record and reading the parties’ briefs, we cannot say

that the district court’s findings concerning causation are clearly erroneous. The

district court heard the testimony of all of the witnesses in this case, including the

experts, and was entitled to credit the testimony of the government’s expert

witness over that of Valdivia’s expert witness. Accordingly, we affirm the

judgment entered in favor of the United States.

      AFFIRMED.




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