                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-1918


SHERITA MURPHY; JONATHAN MURPHY, JR., Individually; J.M.,
an Infant, by and through Sherita Murphy and Jonathan
Murphy, Jr., his Parents and Next Friends,

                Plaintiffs - Appellants,

           v.

UNITED STATES OF AMERICA,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.     Robert G. Doumar, Senior
District Judge. (2:07-cv-00120-RGD-FBS)


Argued:   March 23, 2010                   Decided:   June 17, 2010


Before GREGORY and AGEE, Circuit Judges, and Eugene E. SILER,
Jr., Senior Circuit Judge of the United States Court of Appeals
for the Sixth Circuit, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Laurie Michelle Higginbotham, ARCHULETA, ALSAFFAR &
HIGGINBOTHAM, Austin, Texas, for Appellants.    Anita Kay Henry,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for
Appellee.    ON BRIEF: Michael Archuleta, ARCHULETA, ALSAFFAR &
HIGGINBOTHAM, Austin, Texas, for Appellants.     Dana J. Boente,
Acting   United  States  Attorney,  Alexandria,    Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     This      case       arises   from    a       defense    verdict     awarded     in   a

medical    malpractice        case     filed       pursuant    to   the    Federal    Tort

Claims Act against the United States on the basis of treatment

received      at    the    Naval   Medical         Center    (“NMC”)     in   Portsmouth,

Virginia. 1        The district court entered judgment in favor of NMC

because it found the Murphys failed to prove causation.                          For the

reasons set forth below we affirm the judgment of the district

court.



                                            I.

     On December 3, 2003, plaintiff Sherita Murphy went to NMC

reporting fever, cramping, vaginal bleeding and other serious

symptoms.      A cursory examination of Murphy, who was twenty-six

weeks pregnant, revealed an above normal heart rate and other

symptoms       indicating          a      bacterial           infection       known        as

chorioamnionitis, a diagnosis that was subsequently confirmed.

     About         four    hours   after       her     arrival      at    NMC,   Murphy’s

contractions were occurring every two to four minutes.                           Despite

the seriousness of her symptoms, however, NMC staff failed to

conduct a pelvic exam until almost seven hours after she arrived


     1
       For simplicity, we shall refer to the defendant as NMC
even though the named defendant is the United States.



                                               3
at the hospital.         It was at this time that hospital personnel

discovered Murphy’s baby was delivering at the perineum with a

prolapsed umbilical cord.           Shortly thereafter, J.M. was born —

limp, blue and without respiration or heart rate.

     Despite the long wait and Murphy’s classification as high-

risk, NMC medical personnel failed to prepare adequately for the

baby’s delivery.        No radiant warmer was present in the birthing

room (and one was not available until 10 minutes after J.M. was

born),   no   oxygen     equipment    had    been    laid   out   for   use   and

resuscitation personnel were not present.

     J.M. was born with an omphalocele, a defect in which the

bowel partly forms outside the body.                His “APGAR score was one

at one minute, five at five minutes, and six at ten minutes.”

J.A. 1058.         At one to one-and-a-half minutes post-birth oxygen

was delivered to J.M. via a manually operated positive pressure

bag-valve     mask.       Medical    personnel       encountered    difficulty

intubating J.M. because, a staff anesthesiologist noted, J.M.’s

airway was “very anterior and extremely difficult to intubate.”

J.A. 1058.         It is unclear if or when the bag-valve mask was

connected     to    mechanical   oxygen     though    mechanical   oxygen     was

administered at the time J.M. was finally intubated on the third

attempt.      After intubation, J.M. experienced good chest wall

rise and equal breath sounds bilaterally.                   At two-and-a-half



                                       4
minutes J.M. had a heart rate of 60 beats per minute (“bpm”),

which increased to 120 bpm at four to five minutes post-birth.

      J.M.    suffers     from    cerebral       palsy       and    has     significant

developmental delays.           Sherita Murphy and her husband, Jonathan

Murphy, filed     suit    individually         and    as    next    friends       of    J.M.

alleging that multiple breaches in the standard of care by NMC

personnel caused J.M.’s cerebral palsy. 2                    At trial, the Murphys

focused on NMC’s alleged “failure to deliver the infant in an

appropriate clinical setting; i.e., in a room with appropriate

personnel and appropriate equipment for resuscitation.”                                 J.A.

1063.     NMC did not seriously contest that the hospital and its

staff breached various standards of care.                      Indeed, even NMC’s

expert, Dr. Dillard, agreed that the medical providers “were not

ready for this baby.”            J.A. 907.       Significantly, however, the

Murphys conceded that NMC medical personnel did not contribute

to   J.M.’s    prematurity       or   to   his    condition         at    the     time    of

delivery.

      Although     the      parties        essentially          agreed           that     an

intraventricular        brain    hemorrhage      most       likely       caused     J.M.’s

cerebral      palsy,    they     disagreed       as    to     the        cause    of     the

hemorrhage.       The    Murphys      asserted        that    NMC’s       post-delivery

      2
       The Murphys sought damages for J.M.’s physical injuries
and their own damages for mental anguish and expenses resulting
from the birth of a child with cerebral palsy.



                                           5
breaches in the standard of care triggered an intraventricular

hemorrhage which caused injury to J.M.’s brain.                                   Specifically,

the       Murphys       argued        that    J.M.        suffered     from       hypoxia     and

hypothermia brought about by negligent resuscitation and that

these two conditions caused his injuries.

      NMC maintained throughout the case that despite the various

breaches of care with respect to Sherita Murphy and J.M., the

breaches did not cause J.M.’s injuries.                            At trial NMC maintained

that J.M. suffered neither significant hypoxia nor hypothermia

as    a     result      of      the    resuscitative           event       and     that     J.M.’s

prematurity         combined      with       Mrs.       Murphy’s    chorioamnionitis          most

likely caused the hemorrhage and the cerebral palsy.

      After         a    three-day           bench       trial,      the    district         court

determined “that [NMC] breached the standard of care by failing

to    have     appropriate            resuscitation           equipment          and     personnel

immediately available upon the delivery of J.M.”                                       J.A. 1064.

However, the district court also agreed with NMC’s expert, Dr.

Dillard,      that        (1)     J.M.       did        not   suffer       from        significant

hypothermia, (2) J.M. did not suffer a hypoxic injury, and (3)

NMC’s lack of preparation for J.M.’s delivery did not result in




                                                    6
inadequate      resuscitation. 3          Accordingly,          the    district       court

concluded       that    the     Murphys         “have     failed      to     prove     that

defendant’s negligence was more likely than not the cause of

J.M.’s injuries.”         Id.     Based on these findings, the district

court entered judgment for NMC.

     The Murphys filed a timely appeal, alleging multiple errors

by the district court.            Specifically, they argue the district

court:    (1) reached a verdict that is against the clear weight

of the evidence, (2) displayed bias and impermissibly restricted

their    experts’      testimony,     (3)       improperly      relied       on   evidence

outside    of    the   trial     record,        (4)     erred   in    excluding      NMC’s

policies and procedures from evidence, (5) erroneously applied

Virginia law on the burden of proof of causation, and (6) failed

to award damages and incorrectly ruled that the Murphys were not

eligible for an award of damages in excess of the cap on damages

under    Virginia      law.      We   have       jurisdiction         over   the     appeal

pursuant to 28 U.S.C. § 1291.




     3
       The district court also determined that even assuming J.M.
suffered from these conditions as a result of negligent
resuscitation, the Murphys “have not proved that application of
the standard of care would have prevented injury in this child,
thus clearly not meeting the ‘but for’ requirement.” J.A. 1065.



                                            7
                                          II.

                                          A.

       The    Murphys      presented    three    experts   on    causation.        Dr.

Leichtman,         a     board   certified       pediatrician      and     clinical

geneticist,        testified     that    J.M.’s    injuries      were    caused     by

several minutes of hypoxia and hypothermia that J.M. suffered

during       the   resuscitation.          Dr.    Katz,    a     board    certified

pediatrician       and     pediatric    neurologist,   testified        that   J.M.’s

injuries were caused by a “confluence of factors” around the

time of birth, including the delayed resuscitation event.                         J.A.

1065.    Finally, Dr. Edwards-Brown, a board-certified radiologist

and neuroradiologist testified that the hemorrhaging was most

likely caused by hypoxia and hypothermia, but her opinions were

confined to the cause of the hemorrhaging, not the cause of the

hypoxia.       NMC presented the testimony of Dr. Dillard, who is

board-certified in pediatrics and neonatal/perinatal medicine.

Dr. Dillard testified that J.M.’s injuries most likely resulted

from     two           causes:   prematurity        and        Sherita     Murphy’s

chorioamnionitis.

       The Murphys assert the district court’s judgment is against

the clear weight of the evidence and on appeal they attack Dr.

Dillard’s credibility and the scientific basis for his opinions.

In essence, the Murphys complain that the testimony of their

three expert witnesses outweighs Dr. Dillard’s testimony.                           We

                                           8
disagree and, having reviewed the record as a whole, are of the

opinion that the district court's findings are neither clearly

erroneous, see Fed. R. Civ. P. 52(a)(6), nor against the weight

of the evidence.

          Applying a clear error standard, we “will not
     reverse a lower court's finding of fact simply because
     we would have decided the case differently.”      Easley
     v. Cromartie, 532 U.S. 234 (2001) (internal quotation
     marks omitted).    According to the Supreme Court, we
     can find clear error only if, “‘on the entire
     evidence,’ [we are] ‘left with the definite and firm
     conviction that a mistake has been committed.’”      Id.
     (quoting United States v. U.S. Gypsum Co., 333 U.S.
     364, 395 (1948)). We have identified clear error when
     we have determined that, “without regard to what the
     actual facts may be, the findings under review . . .
     are not supported by substantial evidence.”     Stanley
     v. Hejirika, 134 F.3d 629, 633 (4th Cir. 1998)
     (internal quotation marks omitted); see United States
     v. Whorley, 550 F.3d 326, 338 (4th Cir. 2008)
     (defining “substantial evidence” as “evidence that a
     reasonable finder of fact could accept as adequate and
     sufficient to support” the finding under review).

United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010)

(alteration     in    original).       “We   review    rulings    on     the

admissibility    of   scientific   evidence    .   .   .   for   abuse    of

discretion.”     United States v. Prince-Oyibo, 320 F.3d 494, 497

(4th Cir. 2003).

     The district court concluded that

     [p]laintiffs’ experts provided scant explanation for
     their conclusions that hypoxia and hypothermia caused
     J.M.’s cerebral palsy.      In contrast, defendant’s
     expert, Dr. Dillard, gave detailed reasoning for his
     conclusion that J.M. suffered neither a hypoxic injury
     nor a hypothermic injury from the resuscitative event.
     Moreover, even assuming that resuscitation-related

                                   9
        hypoxia and hypothermia caused J.M.’s brain injury,
        plaintiffs have not proved that application of the
        standard of care would have prevented injury in this
        child, thus clearly not meeting the “but for”
        requirement.

J.A. 1065.

        The   district     court      found      Dr.   Dillard’s    “testimony       in

explaining      the     bases   for   his     conclusions   .   .   .   to   be     more

credible and reliable than those of the [Murphys’] experts.”

J.A. 1066.        “[W]hen a district court's factual finding in a

bench trial is based upon assessments of witness credibility,

such finding ‘is deserving of the highest degree of appellate

deference.’” 4 Evergreen Int’l., S.A. v. Norfolk Dredging Co., 531

F.3d 302, 308 (4th Cir. 2008) (quoting U.S. Fire Ins. Co. v.

Allied Towing Corp., 966 F.2d 820, 824 (4th Cir. 1992)).

     On appeal, the Murphys reiterate on several occasions the

claim    that    they    presented     “uncontroverted      testimony        that    the

delayed resuscitation of J.M. caused his hypoxia, which resulted

in his Grade 4 intraventricular hemorrhage.”                    Br. of Appellant

at 14.        The testimony cited by the Murphys, however, does not



     4
       We note that Dr. Dillard was the only expert whose
training and experience focused extensively on the care of sick
newborn infants with birth defects and that he has published
articles on the relationship between cerebral palsy and
prematurity. Dr. Dillard has also been involved in researching
the association between cerebral palsy and chorioamnionitis.
Clearly, we cannot say the district court erred in affording Dr.
Dillard’s testimony significant weight.



                                            10
support     this    conclusion.      Dr.   Dillard   testified    on   cross-

examination as follows:

      Q.     And correct me if       I’m wrong, but I believe
             you testified on        direct examination that
             when a baby has a        Grade 4 intraventricular
             hemorrhage, that’s      caused by low oxygen and
             low blood pressure?

      A.    I think those are two things             that could
            definitely be associated with            a Grade 4
            hemorrhage.

J.A. 899 (emphasis added).           This testimony by Dr. Dillard does

not   address       the   Murphys’     contention    that   a      delay   in

resuscitation by NMC personnel caused hypoxia and J.M.’s brain

hemorrhage.        To the contrary, Dr. Dillard explicitly testified

on direct examination as follows:

      Q.    In your opinion did J.M. sustain any injury
            — well, first of all did J.M. have hypoxia?

      A.    No.   Well, let me put it another way.  I’m
            sure, just as most babies did, he had
            hypoxia at birth which is almost universal,
            but the big question is did he have hypoxia
            to the extent that it caused injury.

      Q.    Did he?

      A.    No, he did not.

J.A. 880.

      Dr. Dillard reiterated this point on cross-examination:

      Q.    And you agree that hypoxia          makes it    more
            likely    that     a    baby          will      have
            intraventricular hemorrhage?

      A.    Again, it’s a matter of degree of hypoxia.
            As I explained earlier, all babies have some

                                      11
          degree of hypoxia at birth, but of course
          all babies who are born prematurely and have
          hypoxia     at     birth     don’t    develop
          intraventricular hemorrhage.      It takes a
          significant degree of hypoxia to result in
          interventricular     hemorrhage,    and    my
          contention is that this baby did not have
          significant hypoxia.

J.A. 902-03.

     Dr. Dillard’s conclusion that J.M. did not suffer a lack of

oxygen significant enough to cause his brain hemorrhage and his

resulting deficits is fully supported by the record.       As the

district court explained:

          Plaintiffs have not proved by a preponderance of
     the evidence that application of the standard of care
     would have prevented any hypoxic injury that J.M. may
     have had.    Plaintiffs experts testified that medical
     providers breached the standard of care by failing to
     have oxygen available at the moment of birth and
     failing to have “adequate” resuscitation personnel and
     equipment present at birth.         Oxygen was however
     available at approximately one minute of life and the
     medical   record   discloses   that   positive  pressure
     ventilation with bag-valve mask was begun immediately
     thereafter.    The Court is troubled that plaintiffs’
     experts glossed over this early access to oxygen as if
     it could be ignored, indicating that four to five
     minutes passed before oxygen of sufficient quantity
     was administered.    Given that the plaintiffs’ experts
     did not address the bag-valve provision of oxygen,
     there is no testimony that this early provision of
     oxygen was insufficient for the purposes of preventing
     brain damage.    Importantly, there is no evidence in
     the testimony or expert reports of the plaintiffs
     regarding the period of time that a neonate can
     sustain hypoxia without suffering brain injury.

J.A. 1076.




                               12
      Although the Murphys acknowledge on appeal that “[o]xygen

was not available to the baby until one minute of life, and was

not provided via bag-valve-mask until 1½ to 2 minutes of life,”

they nonetheless draw the conclusion, entirely unsupported by

their experts’ testimony, that “[s]ince no oxygen was getting to

his brain during this time period, J.M.’s brain hemorrhaged and

was   permanently   damaged.”    Br.       of    Appellant     at    5   (internal

citation    omitted).    Only   one    of       the    Murphys’     experts,   Dr.

Leichtman, broached the subject by testifying that “we generally

like to get a resuscitation event over by one to three minutes.”

J.A. 611.     As the district court explained, Dr. Leichtman did

not testify that this threshold was significant enough to cause

injury to a baby generally or to J.M. in particular.                     Moreover,

Dr. Dillard stated that while adults can sustain brain injury

after “just a minute or two or three,” premature infants like

J.M. could withstand injury from a lack of oxygen for “somewhat

longer.”    J.A. 880.

      In addition to countering the Murphys’ experts’ conclusions

that hypoxia and hypothermia caused J.M.’s injuries, Dr. Dillard

testified extensively about the causes of J.M.’s impairments.

With considerable explanation Dr. Dillard concluded that “[a]

variety of complications that are related to prematurity were

significantly   additive   in   the    causation        of   [J.M.’s]     cerebral

palsy.”     J.A. 854.   He also offered               his opinion that “[t]he

                                      13
mother’s     chorioamnionitis          is    strongly      associated     with     the

development of . . . Grade 4 hemorrhage[s] . . . .”                       J.A. 838.

According to Dr. Dillard, various studies demonstrate that the

association    is    “very     statistically        significant;       meaning    that

there’s    less     than   a    one-in-20        chance   of   there   being,     this

occurring by chance alone.”            J.A. 838.

       Not only did Dr. Dillard offer his own causation testimony

with      respect     to       prematurity         and    chorioamnionitis,         he

specifically      rebutted     the    causation      testimony    offered    by    the

Murphys’    experts.       The       district     court   found   this    testimony

credible and persuasive.

            Our system of justice rests on the general
       assumption that the truth is not to be determined
       merely by the number of witnesses on each side of a
       controversy. In gauging the truth of conflicting
       evidence, [the factfinder] has no simple formulation
       of weights and measures upon which to rely. The
       touchstone is always credibility; the ultimate measure
       of testimonial worth is quality and not quantity.
       Triers of fact in our fact-finding tribunals are, with
       rare exceptions, free in the exercise of their honest
       judgment, to prefer the testimony of a single witness
       to that of many.

Weiler v. United States, 323 U.S. 606, 608 (1945).

       In short, the record contains ample evidence to support the

district court’s factual, legal and credibility determinations.

Accordingly, we find no error.




                                            14
                                                  B.

        The Murphys next assert that the district court harbored a

bias    in   favor        of    NMC    and    against        them,      their     experts,        and

medical      malpractice          suits      generally.               In    support     of     this

assertion     they        cite     various        rulings         and      statements     by      the

district court as evidence of bias.                         As NMC points out, however,

the    Murphys   never          made    a    motion        for   recusal      pursuant       to    28

U.S.C. § 455, which requires a judge to “disqualify himself in

any proceeding in which his impartiality might reasonably be

questioned”      or       “[w]here      he    has      a   personal        bias   or    prejudice

concerning       a        party,       or     personal           knowledge        of     disputed

evidentiary facts concerning the proceeding.”                               28 U.S.C. 455(a)-

(b)(1).

       “The rule that an objection must be timely raised with the

trial    court       to    preserve         the     right        of   appellate        review     is

elementary,      and       it    is    of    long      standing.”           United     States      v.

Godwin, 272 F.3d 659, 672 (4th Cir. 2001).                                  In this case, the

Murphys failed to raise most of these issues with the district

court and made no motion for recusal based on any alleged bias.

Therefore, except for evidentiary rulings subject to a proper

objection, any alleged errors are subject to plain-error review.

See, e.g., United States v. Berger, 375 F.3d 1223, 1227 (11th

Cir. 2004) (“Ordinarily, we review a judge's decision not to

recuse him or herself for an abuse of discretion.                                        However,

                                                  15
because [appellant] failed to seek recusal of the district judge

in   the    proceedings       below,      we    review       his    recusal      request      for

plain      error.”)    (internal       citation        omitted);          United    States     v.

Cruz-Mercado,         360    F.3d   30,    36       (1st    Cir.     2004)    (“[Appellant]

neither objected to the[] comments nor sought recusal of the

trial      judge   based       on   partiality,             limiting       our      review     to

assessing only whether plain error occurred.”).

       Aside from several instances in which the district court

restricted their admission of evidence or dealt with Murphys’

counsel in what the Murphys consider a brusque, impatient or

sarcastic manner (unreasonably in the Murphys’ view), they offer

only    one     specific       statement         by        the     district        court     that

demonstrates a potential bias.                      In that instance the district

court expressed its awareness of several doctors who had left

the profession because of rising medical malpractice premiums.

During a conversation with the Murphys’ counsel concerning the

court’s      refusal    to    admit    NMC’s        policies        and    procedures        into

evidence, the district court made the following statement:

       The Court:            And     consequently     in     that
                             particular case, the trial judge
                             felt under his discretion that he
                             could admit that particular rule.
                             So far as it’s discretionary I
                             wouldn’t admit it, because what I
                             think is the standard is going to
                             have    to    be     the    standard
                             established for all the particular
                             profession or the industry itself.
                             If we start on this, then what we

                                               16
                    do is we actually get — I think
                    oftentimes   we   get    so    often
                    enmeshed in these things, I think
                    it’s important to understand that
                    if you establish such a thing,
                    what you do is decry people from
                    making rules that are beneficial
                    and   you   decry   industries    or
                    companies from doing it.         And
                    it’s, there is no question you do.
                    Because once a lawyer’s [sic] get
                    ahold of it they say don’t make a
                    rule, don’t do this, don’t do
                    that, you’re going to get sued.
                    As it is right now, where are we
                    with obstetricians?    I think at
                    least three of them I know have
                    quit the profession because of the
                    cost on the malpractice coverage
                    which is 90-some thousand dollars
                    a year.

J.A. 748 (emphasis added).   The district court’s statement does

not constitute plain error for several reasons.

     The Supreme Court explained in Liteky v. United States, 510

U.S. 540 (1994), that

     judicial rulings alone almost never constitute a valid
     basis for a bias or partiality motion.      See United
     States v. Grinnell Corp., 384 U.S., at 583. In and of
     themselves (i.e., apart from surrounding comments or
     accompanying opinion), they cannot possibly show
     reliance upon an extrajudicial source; and can only in
     the rarest circumstances evidence the degree of
     favoritism or antagonism required (as discussed below)
     when no extrajudicial source is involved.       Almost
     invariably, they are proper grounds for appeal, not
     for recusal.   Second, opinions formed by the judge on
     the basis of facts introduced or events occurring in
     the course of the current proceedings, or of prior
     proceedings, do not constitute a basis for a bias or
     partiality motion unless they display a deep-seated
     favoritism or antagonism that would make fair judgment
     impossible.   Thus, judicial remarks during the course

                               17
       of a trial that are critical or disapproving of, or
       even hostile to, counsel, the parties, or their cases,
       ordinarily do not support a bias or partiality
       challenge.  They may do so if they reveal an opinion
       that derives from an extrajudicial source; and they
       will do so if they reveal such a high degree of
       favoritism or antagonism as to make fair judgment
       impossible.

Id. at 555 (emphasis added).

       The district court’s statement was made in the context of

explaining     its      ruling    refusing      to       admit    NMC’s      policies      and

procedures.       According to the district court, such materials do

not constitute the standard of care in the industry but instead

reflect    the     aspirational         goals       of    the     organization.             In

explaining its ruling to counsel, the district court was stating

its belief that hospitals would not adopt such policies for fear

of    having   them     used     at   trial    to    establish         a    breach    in   the

standard of care when, in fact, the standard of care reflects

the    standard    in    the     medical      community      as    a       whole,    not   the

standard at a particular institution.

       Immediately after making the statement the district court

elaborated that

       the question here in my mind is simple:       Has the
       Portsmouth Naval Hospital violated the standards that
       are generally acceptable among the medical profession
       at the time and place of the incident in question?
       And did it cause the injuries of the plaintiff?   And
       if so, to what extent? That’s what we’re really doing
       here.




                                           18
J.A. 749.     This statement by the district court makes clear that

it   was   mindful       of   its      duties       and     was    entirely    capable    of

rendering fair judgment.                There is simply nothing in the record

indicating        that     the        district       court        held   “a    deep-seated

favoritism or antagonism [towards the Murphys] that would make

fair judgment impossible.”               Liteky, 510 U.S. at 555.

      Our review of the record also leads to the conclusion that

no error occurred with respect to the remaining conduct cited by

the Murphys as examples of bias.                       Though some comments by the

district court might be considered “stern and short-tempered,”

they fall     within       the       categories       of    statements      that   will   not

constitute bias.         Liteky, 510 U.S. at 556; see also id. at 555-

56   (“Not        establishing          bias     or        partiality,      however,      are

expressions of impatience, dissatisfaction, annoyance,                             and even

anger, that are within the bounds of what imperfect men and

women,     even    after      having     been       confirmed       as   federal    judges,

sometimes    display.            A    judge's       ordinary      efforts     at   courtroom

administration-even a stern and short-tempered judge's ordinary

efforts at courtroom administration-remain immune.”).

                                               C.

      The Murphys also claim they are entitled to a new trial

because the district court relied on evidence outside the trial

record.



                                               19
      We have granted a new trial “only in the most extreme
      of cases” where a judge demonstrated personal bias
      against   a    litigant   because   of   reliance    on
      extrajudicial sources.    Aiken County v. BSP Div. of
      Envirotech Corp., 866 F.2d 661, 678 (4th Cir. 1989);
      see generally Crandell v. United States, 703 F.2d 74,
      75-76 (4th Cir. 1983). And a court's consideration of
      material outside the record does not generally raise
      issues of constitutional magnitude.        See    Aiken
      County, 866 F.2d at 678 (“We do not think, however,
      that the two memoranda received by the judge and the
      ancillary ex parte contacts in this case approach the
      magnitude of constitutional error.”).

ePlus    Tech.,   Inc.   v.   Aboud,    313   F.3d   166,   178–79     (4th   Cir.

2002).

      As with the Murphys’ previous allegations of bias by the

district court, the record shows that they did not object when

the trial judge informed them that he would be looking up the

experts on the Internet to see “[w]hat their field of expertise

is, what they have written, what they have not written.”                      J.A.

95.     Having failed to object, the question becomes whether the

trial court’s doing so (or at least saying it was going to do

so) constitutes plain error.            It does not.         The most obvious

reason no substantial error occurred is because, as NMC notes,

the district court indicated it was going to review information

on all the experts, not just the Murphys’ witnesses.                   Moreover,

the Murphys have made no showing of any prejudice by virtue of

the district court’s research, if indeed it occurred.

      The Murphys also object to various other statements by the

district    court   indicating     an    effort      to   read   the   materials

                                        20
provided by the parties and referenced by the experts.                                 Having

reviewed these statements, we conclude they indicate little more

than a diligent effort by the district court to absorb the vast

amounts of medical information referenced or relied upon by the

parties’ experts.             Conduct the Murphys consider “prejudicial,”

we believe illustrates conscientious attention to the district

court’s duties.         Indeed, the Murphys concede that “[w]hen a fact

finder      relies    on     outside     evidence,        for   the    alleged      bias   and

prejudice        to    be      disqualifying,             it    must     stem       from    an

extrajudicial source and result in an opinion on the merits on

some     basis       other     than     what        the    judge      learned       from   his

participation in the case.”                 Br. of Appellant at 35 (emphasis

added).       The Murphys do not cite one statement in the district

court’s opinion as an example of “misconduct” and our review of

the record reveals that the district court undertook its role as

fact-finder quite seriously.                   Regardless of what materials it

may    have    considered,         its    opinion         falls       easily    within     the

confines of the evidence presented at trial.

                                               D.

       The Murphys further contend the district court erred in

refusing to admit excerpts of NMC’s labor and delivery manuals

on    the    limited       issue   of     causation.            Relying        on   Riverside

Hospital,      Inc.    v.     Johnson,     636       S.E.2d     416    (Va.     2006),     they

assert that Virginia law allows the admission of a hospital’s

                                               21
written policies and procedures for such a limited purpose.              We

disagree.

        In 1915 the Supreme Court of Virginia held that

        [a] person cannot, by the adoption of private rules,
        fix the standard of his duty to others. That is fixed
        by law, either statutory or common. Private rules may
        require of employ[e]es less or more than is required
        by law; and whether a given course of conduct is
        negligent, or the exercise of reasonable care, must be
        determined by the standard fixed by law, without
        regard to any private rules of the party.

Virginia Ry. & Power Co. v. Godsey, 83 S.E. 1072, 1073 (Va.

1915); see also Pullen v. Nickens, 310 S.E.2d 452, 457 (Va.

1983)       (reaffirming   Godsey   and   holding   that   State    Highway

Department’s internal rules were inadmissible).            This Court has

previously      recognized   Virginia’s    longstanding    rule    in   this

regard and determined that “the Virginia rule is sufficiently

bound-up with state policy so as to require its application in

federal court.”       Hottle v. Beech Aircraft Corp., 47 F.3d 106,

110 (4th Cir. 1995). 5

        5
        The Murphys argue that we should review the district
court’s refusal to admit the policies and procedures de novo.
NMC asserts that the district court’s refusal to admit the
material constitutes a ruling on the admissibility of evidence
that is reviewed for an abuse of discretion.   Because we have
already determined that Virginia’s preclusion of “policies and
procedures,” albeit evidentiary in nature, is substantive, our
“review of a district court's interpretation or application of
state law is de novo.”   Bryte ex rel. Bryte v. Am. Household,
Inc., 429 F.3d 469, 475 (4th Cir. 2005) (citing       James v.
Circuit City Stores, Inc., 370 F.3d 417, 421-22 (4th Cir.
2004)).


                                     22
       Even     though      the     Murphys     allege      that    they      sought      to

introduce NMC’s policies and procedures “for the limited purpose

of establishing causation,” they admit seeking the introduction

of such evidence “because these manuals clearly establish that

Government providers knew the standard of care would prevent the

injury suffered by J.M.”              Br. of Appellants at 39.               The Murphys

also   assert       that   in     Riverside    the    Supreme      Court     of   Virginia

“ruled    that      the    defendant    hospital’s         policies    and    procedures

were admissible over the same objection offered by [NMC] in this

case.”    Br. of Appellants at 43.

       As an initial matter, because the procedure manuals cannot

be introduced to establish the standard of care, we fail to see

how the information could show the “providers knew the standard

of care” in the community as a whole would have prevented J.M.’s

injuries.           Moreover,        Riverside       does    not      stand       for    the

proposition asserted by the Murphys because that case did not

involve       the   hospital’s       “policies       and    procedures.”           As    the

Supreme Court of Virginia plainly stated, “the evidence of the

staff orientation instruction and nursing curriculum, although

dealing with the issue of fall-risk assessment and prevention,

were not hospital policies or procedures of the type involved in

Godsey and Pullen.”             Riverside, 636 S.E.2d at 422.              In this case

the Murphys sought to introduce excerpts from NMC’s labor and

delivery       policy      manuals     which     they      admit    constitute          NMC’s

                                           23
“policy    and    procedure   manuals.”         Br.   of   Appellants   at   39.

Accordingly, the district court correctly interpreted Virginia

law and did not err by excluding this evidence.

                                        E.

     The final claim of error we must consider is the Murphys’

claim that the district court erroneously applied Virginia law

on the burden of proof of causation.                  They stress that under

Virginia law they were only required to prove it was more likely

than not that NMC’s negligence was a cause of J.M.’s injuries,

not that it was the sole cause.                In other words, the Murphys

argue they were “not required to prove that hypoxia was ‘the

only’ cause of J.M.’s injuries, [but] rather ‘a’ cause of J.M.’s

injuries.”       Br. of Appellants at 50.        The parties agree that our

review of the district court’s application of state law is de

novo.   See note 5, supra.

     The    obvious    problem    for    the    Murphys    is   that,   in   the

district court’s view, they failed even to prove that hypoxia

was “a” cause of J.M.’s deficits, much less “the” cause.                As the

district court explained:         “Dr. Dillard concluded that J.M. was

not exposed to a significant enough deprivation of oxygen during

the resuscitation event to cause a hypoxic injury in the brain.”

J.A. 1072 (emphasis added).           According to the district court, it

“believed    the    testimony    of   Dr.    Dillard    while   rejecting    the



                                        24
conclusions of the [Murphys’] experts.”      Id.   Based on these

factual findings, the district court concluded that

     [t]he reports and testimony [of the Murphys’ experts]
     provided little in the way of any explanation or basis
     for their opinions that hypoxia and hypothermia
     resulted from defendant’s failure to follow the
     standard   of  care   for  resuscitations,  ultimately
     causing J.M.’s cerebral palsy. The Court hereby finds
     that [the Murphys’] experts’ conclusions on the
     standard of care are credible, but further finds their
     conclusions on causation not credible.

J.A. 1078.

     We agree with NMC that “[a]bsent credible proof of this

essential factual predicate, any discussion of Virginia law on

causation is irrelevant.”   Br. of Appellee at 54.    We therefore

conclude the district court did not err. 6



                               III.

     Having reviewed the record, the parties' briefs, and the

applicable law, and having had the benefit of oral argument, we

find no error and, for the reasons stated herein, affirm the

judgment of the district court.

                                                          AFFIRMED

     6
       The Murphys make two final challenges to the district
court’s verdict in favor of NMC. They assert the district court
erred by (1) failing to award damages and (2) ruling that their
claims were subject to Virginia’s cap on damages for medical
malpractice awards.     In light of our conclusion that the
district court did not err in entering judgment for NMC, we need
not address these issues.



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