                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-2183
                                   ___________

Stanley Little White Man, Jr.,          *
Administrator of the Estate of          *
Stanley Little White Man, Sr.,          *
                                        *
            Plaintiff - Appellant,       *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of South Dakota
                                        *
United States of America,               *
                                        *
                                        *
            Defendant - Appellee.       *
                                   ___________

                            Submitted: January 13, 2006
                                Filed: May 4, 2006
                                  ___________

Before LOKEN, Chief Judge, McMILLIAN1 and MELLOY, Circuit Judges.
                              ___________

MELLOY, Circuit Judge.



      1
        The Honorable Theodore McMillian died on January 18, 2006. This opinion
is being filed by the remaining judges of the panel pursuant to 8th Cir. Rule 47E. The
opinion is consistent with the views expressed by Judge McMillian at the conference
following oral argument.
       Stanley Little White Man, Jr., as Administrator of the Estate of Stanley Little
White Man, Sr., brought suit against the United States for negligence pursuant to the
Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b). The appellant claimed that the
Indian Health Service’s (IHS) failure to refer Little White Man, Sr. for a biopsy of his
gum tissue caused his death. The district court,2 following a bench trial, found any
substandard care that might have been given by the IHS was not the proximate cause
of Little White Man, Sr.’s death. We affirm.

I. Background

      On November 5, 1997, Little White Man, Sr. went to the IHS dental clinic in
Kyle, South Dakota, complaining of tooth pain on the upper-left side of his mouth.
He was examined by Dr. Maria-Paz Smith. Dr. Smith found gross decay and
periodontitis throughout his mouth. She indicated that his palate was inflamed and
found a painful, inflamed abscess between teeth ten and eleven. Dr. Smith
recommended the removal of teeth nine, ten, eleven, and twelve.

        Little White Man, Sr. did not want to have all four teeth extracted that day and
asked Dr. Smith to remove the "worst tooth." Dr. Smith surgically removed tooth
eleven. As part of the removal, she had to cut the tooth out of the jawbone because
it had fused to the bone. Dr. Smith prescribed Tylenol for the pain and amoxicillin for
the infections in his mouth. Dr. Smith testified that at that time she did not see
anything that resembled oral cancer, such as indurated or grainy tissue. Rather, the
area around tooth eleven was bloody and soft, which is normal for an abscess.

     On November 12, 1997, Little White Man, Sr. returned to the IHS clinic. He
complained of pain in teeth nine and ten. Dr. Smith removed both teeth and again


      2
       The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.

                                          -2-
prescribed amoxicillin and Tylenol. Dr. Smith testified that the extraction site for
tooth eleven was healing normally. There were no palpable lesions or indurated or
grainy tissue. Although Dr. Smith recommended that Little White Man, Sr. return for
a full dental exam, no appointment was scheduled. Little White Man, Sr. did not
return for an exam.

       On December 8, 1997, Little White Man, Sr. returned to the clinic because of
pain in tooth twelve, which was grossly decayed. Dr. Smith extracted the tooth but
did not perform a full dental exam. She again prescribed amoxicillin and Tylenol. Dr.
Smith testified that at that time, she did see periodontitis, but no manifestation of oral
cancer such as a lesion.

      On December 12, 1997, Little White Man, Sr. returned because he was still in
pain. Dr. Smith was unable to see him due to other appointments, so he went to the
IHS dental clinic in Pine Ridge, South Dakota. Little White Man, Sr. was seen by Dr.
Victor Igunbola.

       At that visit, Little White Man, Sr. complained of throbbing pain in the entire
extraction site. Dr. Igunbola did not have Little White Man, Sr.’s records and had not
spoken to Dr. Smith. He knew that Little White Man, Sr. was taking amoxicillin and
that Dr. Smith had removed four teeth. However, he erroneously believed that they
had all been removed on the same day, December 8, 1997. Dr. Igunbola diagnosed
a dry socket in the extraction site of tooth eleven. He did not identify any condition,
such as indurated or grainy tissue that would indicate the need for a referral to a
specialist. Dr. Igunbola did order a panoramic x-ray to rule out a pathological cause
of the pain, such as bone loss, an abscess, or the presence of a piece of an extracted
tooth. The x-ray indicated nothing unusual. Dr. Igunbola rinsed the extraction site
and placed a dressing on the dry socket. He asked Little White Man, Sr. to return in
three days to see the dentist on duty.



                                           -3-
       Little White Man, Sr. did not return in three days, but returned to the Pine Ridge
Clinic for emergency care on December 29, 1997. Little White Man, Sr. was
examined by Dr. Michael Cangemi, who identified a dry socket without a blood clot.
Dr. Cangemi had the record from the previous Pine Ridge visit and was aware that
Little White Man, Sr. had been seen at the Kyle clinic, although he did not know that
the extractions were not done all at once, but rather over four weeks. Little White
Man, Sr. stated that the dressing that Dr. Igunbola had placed in the dry socket had
fallen out on the evening of December 12. Dr. Cangemi did not observe any indurated
or grainy tissue indicating the need for a visit with a specialist and instructed Little
White Man, Sr. to return in two days to check the dry socket.

        On January 14, 1998, Little White Man, Sr. saw Dr. Lawrence Gunner, a dentist
in private practice in Martin, South Dakota. Little White Man, Sr. complained of pain
in his jaw and around his ear, swollen gums, bad breath, and an unpleasant taste in his
mouth. Dr. Gunner examined Little White Man, Sr. and observed a large, unhealed
area of red gum tissue. He found the gum tissue to be indurated and grainy. Part of
Little White Man, Sr.’s inner nostril was red and swollen. Dr. Gunner ordered a
panoramic x-ray, which suggested possible concern “in the maxillary sinus area.” As
a result, Dr. Gunner concluded that Little White Man, Sr. did not have a dry socket.
Rather, he believed that Little White Man, Sr.’s condition might have been caused by
cancer, and thus he referred Little White Man, Sr. to Dr. Dale Gunderson, an
otolaryngologist in Rapid City, South Dakota. Further, Dr. Gunner informed Dr.
Gunderson of the symptoms he observed via facsimile.

       On January 15, 1998, Dr. Gunderson examined Little White Man, Sr. Dr.
Gunderson found that Little White Man, Sr. had a swollen, non-healing lesion. He
performed a biopsy and ordered x-rays and a CAT scan of Little White Man, Sr.’s face
and sinuses. On January 19, 1998, Dr. Gunderson notified Little White Man, Sr. that
his biopsy was positive for squamous cell carcinoma. The x-rays revealed a mass in
the area where his teeth had been and in the maxillary sinus. The mass in Little White

                                          -4-
Man, Sr.’s sinus was later diagnosed as benign, but the lesion in his mouth was a
moderately differentiated squamous cell carcinoma. Dr. Gunderson referred Little
White Man, Sr. to Dr. Ronald Drummond for a radiation treatment consultation.

       Little White Man, Sr. was advised by Dr. Gunderson and Dr. Drummond that
surgical removal of his tumor was his best option and that they would evaluate the
need for radiation therapy after the operation. The tumors were removed by Dr.
Gunderson on February 5, 1998. He found that the margins of the tissue he removed
were free of cancer. Accordingly, Dr. Drummond and Dr. Gunderson agreed that
radiation therapy was not necessary given the “good margins” and the serious side
effects of radiation therapy. Following the procedure, Dr. Gunderson classified the
tumors as a stage 2 (T2) carcinoma. Dr. Gunderson estimated that Little White Man,
Sr. had a seventy-five to eighty percent chance of survival following surgery and
radiation. If the tumor had been a stage 1 (T1) mass, Dr. Gunderson estimated that
Little White Man, Sr. would have had a ninety percent chance of survival with either
surgery or radiation.

       In April 1998, Little White Man, Sr. found a lump on his neck. A needle biopsy
indicated that it was not cancerous. He was prescribed antibiotics for the lump, but
it continued to grow. A second biopsy was ordered on May 26, 1998. This biopsy
also showed no evidence of cancer.

       On June 9, 1998, a CAT scan showed an abscess and a suspicious-looking
cervical lymph node beneath the abscess. Because the lymph node could not be
reached with a needle, Dr. Gunderson surgically removed the lymph node. A biopsy
of the node was positive for recurrent cancer.

      The recurrence of a rapidly growing cancer significantly worsened Little White
Man, Sr.’s prognosis. In light of the recurrence, Dr. Gunderson and Dr. Drummond
proposed a more aggressive course of treatment despite the possibility of side effects.

                                         -5-
On June 22, 1998, Little White Man, Sr. had a right radical neck dissection - the
surgical removal of lymph nodes from the right side of the neck. Little White Man,
Sr. underwent daily radiation treatments to his shoulders and neck until September
1998. The radiation therapy affected his sense of taste and caused dry mouth, making
it difficult for him to eat. Additionally, the cancer spread to the base of his skull,
which could only be treated with radiation. On October 6, 1998, Little White Man,
Sr. saw Dr. Gunderson for a follow-up visit. At that time, Dr. Gunderson saw “no
evidence of disease.”

       In January 1999, the cancer on the right side of Little White Man, Sr.’s neck
returned. He was referred to the Mayo Clinic in Rochester, Minnesota. Little White
Man, Sr. began chemotherapy because the lesion was inoperable and his body could
not tolerate further radiation treatment. The cancer was incurable at this juncture, and
thus the chemotherapy was given to try to relieve Little White Man, Sr.’s pain. He
died of cancer on May 5, 1999.

       Little White Man, Sr.’s estate brought this action, claiming that a referral to a
specialist should have been made by the IHS dentists who treated Little White Man,
Sr. The district court found that the plaintiffs had failed to show that any negligence
by the IHS was the proximate cause of Little White Man, Sr.’s death. Appellant now
brings this timely appeal.

II. Discussion

      In analyzing this FTCA action, we apply the law of South Dakota, the state in
which the acts underlying the complaint occurred. 28 U.S.C. § 1346(b). South
Dakota law states that “[n]egligence is the breach of a duty owed to another, the
proximate cause of which results in an injury.” Zarecky v. Thompson, 634 N.W.2d
311, 316 (S.D. 2001) (internal quotations omitted).



                                          -6-
       Appellant contends that IHS dentists provided substandard medical care to
Little White Man, Sr. and that the substandard care was the proximate cause of his
death or at least his decreased chance of survival and his increased pain. In particular,
appellant asserts that the district court made an implicit finding of substandard care
and erred in finding that the substandard care was not the proximate cause of Little
White Man, Sr.’s death or decreased chance of survival and increased pain. For
purposes of this appeal, we need not determine whether the district court made an
implicit finding or if Little White Man, Sr. received substandard care. Even if we
assume that Little White Man, Sr. did receive substandard care, the district court’s
finding that the appellant failed to prove that any harm done was the proximate cause
of the injury was not clear error. See LaRoche v. United States, 779 F.2d 1372, 1373
(8th Cir. 1986) (reviewing findings of fact for clear error); Luther v. City of Winner,
674 N.W.2d 339, 348 (S.D. 2004) (stating that under South Dakota law proximate
cause is ordinarily a question of fact).

       The burden is on the appellant to prove that the failure of IHS’s dentists to
provide standard care was the proximate cause of, or a substantial factor in bringing
about, Little White Man, Sr.’s death or decreased chance of survival and increased
pain. Williams v. United States, 450 F. Supp. 1040, 1045-46 (D.S.D. 1978). The
district court concluded that the appellant had not met its burden because it did not
show that Little White Man, Sr.’s medical treatment would have been different if the
cancer had been detected earlier. Appellant argues that this was error because the
district court did not consider the opinion of Dr. Gunner that the cancer could have
been cured if diagnosed earlier. Appellant also argues that the opinions of Dr.
Gunderson and Dr. Drummond on which the district court based its decisions were
merely guesses that lacked credibility.

      The district court in this case held a full trial and heard expert testimony
presented by both sides. We give due regard “to the opportunity of the trial court to
judge the credibility of the witness.” Fed. R. Civ. P. 52(a). A review of the record

                                          -7-
shows that although all of the experts agreed that early detection is critical to
successfully treating cancer, none of the experts, including Little White Man, Sr.’s
expert, Dr. Gunner, provided sufficient evidence to show that an earlier diagnosis
would have prevented Little White Man, Sr.’s death or lessened his pain. In fact, the
testimony of Dr. Gunderson and Dr. Drummond “supports the opposite conclusion,
that an earlier diagnosis would not have saved Little White Man [Sr.].” Further, there
appears to be little evidence that the course of treatment would have been different or
that Little White Man, Sr. would have been spared the side effects of the aggressive
therapy regimen had the cancer been detected sooner. The testimony of the experts,
including Dr. Gunner, does not demonstrate that IHS’s treatment was a substantial
factor in Little White Man, Sr.’s death or the pain he endured during his therapy.
Therefore, the district court did not err in concluding that the appellant failed to show
that IHS’s failure to detect the cancer sooner was a proximate cause of Little White
Man, Sr.’s death or decreased chance of survival and increased pain.

      Accordingly, we affirm the decision of the district court.
                     ______________________________




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