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                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 15-10281
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 6:13-cv-00058-BAE-GRS



BARTOW C. DUTTON,

                                                                          Plaintiff,

EDNA R. DUTTON,
Individually and as Administrator of the Estate of Bartow C. Dutton,

                                                               Plaintiff-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                             Defendant-Appellee.

                          ________________________

                   Appeal from the United States District Court
                      for the Southern District of Georgia
                         ________________________

                                 (June 16, 2015)

Before MARCUS, WILLIAM PRYOR, and MARTIN, Circuit Judges.
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PER CURIAM:

      Edna R. Dutton, as administrator of the estate of her late husband Bartow C.

Dutton, appeals the dismissal of her Federal Tort Claims Act (FTCA) claim, 28

U.S.C. § 1346(b). Dutton alleges that doctors and staff of the Charlie Norwood

Veterans Administration Medical Center (VAMC) committed medical malpractice

under Georgia law. Specifically, she argues that Dr. David H. Riggans failed to

properly perform an angiography, and that subsequently, various other VAMC

employees failed to properly treat a condition that developed in Dutton’s right leg.

She contends that these failures resulted in “Mr. Dutton’s intense suffering, agony

and the loss of his entire right leg due to amputation.” The district court granted

partial summary judgment to the United States for claims against Dr. Riggans

because he was an independent contractor—not an employee—under the FTCA.

The court then granted summary judgment to the government on all remaining

claims, holding that Dutton’s only proffered expert was not competent to testify

under Georgia evidentiary rules, O.C.G.A. § 24-7-702(c). After careful

consideration, we affirm.

                                          I.

      Bartow Dutton was a veteran eligible for medical care at the VAMC. On

May 24, 2010, Dutton was admitted to the VAMC after complaining of abdominal

pain, vomiting, and loose stools. Testing revealed that he suffered from mesenteric
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ischemia, a vascular disease in which insufficient blood supply to the small

intestine causes intestinal damage. As treatment, Dr. Riggans attempted to stent

the blocked superior mesenteric artery. That attempt failed.

      The night after the failed procedure, Dutton told staff at the VAMC that he

felt as though he was losing blood flow in his right leg. A nurse could feel no

pulse in his foot, and noted that his leg was discolored and cool to the touch. A

vascular surgery team evaluated Dutton and determined that he had developed a

blood clot in his right leg. Still, Dr. Manuel F. Ramirez, who led the team,

recommended conservative treatment, noting the following:

             Given, patient’s active issues with mesenteric ischemia and GI
      bleed, he has a strong contraindication to anticoagulation, the patient
      was instructed to hang his right leg off the side of his bed and to be
      treated with conservative measures at this point in time.
             It was discussed [with the] patient that there may be a
      possibility that he will require an AKA [above knee amputation] in
      the future.
      The next morning, Dutton’s right leg remained cold and pulseless. Dr.

Ramirez noted that the “general consensus was to proceed with a repeat aortogram

with intent to revascularize the celiac trunk and proceed with ly[t]ic therapy of his

thrombosed RLE.” Dutton was transferred to the Medical College of Georgia to

continue lytic therapy. The therapy was unsuccessful, and “in light of the patient’s

mesenteric ischemia and risk of having an acute dead bowel presentation masked

by the right lower extremity problems, it was decided to proceed with a lower

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extremity amputation.” Dutton’s right leg was amputated on June 6, 2010.

                                         II.

      “We review de novo the district court’s grant of summary judgment and use

the same standard of review utilized by the district court.” Miccosukee Tribe of

Indians of Fla. v. United States, 566 F.3d 1257, 1264 (11th Cir. 2009). “The court

shall grant summary judgment if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56. A court views the facts in the light most favorable to the non-

moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587, 106 S. Ct. 1348, 1356 (1986). Summary judgment is appropriate when a non-

movant “fails to make a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear the burden of proof

at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552

(1986).

                                         III.

      We first address whether the district court erred by granting partial summary

judgment because Dr. Riggans was an independent contractor. The FTCA

“waive[s] the sovereign immunity of the United States for certain torts committed

by federal employees.” FDIC v. Meyer, 510 U.S. 471, 475, 114 S. Ct. 996, 1000

(1994) (citing § 1346(b)). But a plaintiff may not recover against the United States

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for the torts of an independent contractor. Means v. United States, 176 F.3d 1376,

1379–80 (11th Cir. 1999). Under this Court’s precedent, “a person is not an

‘employee of the government’ for FTCA purposes unless the government controls

and supervises the day-to-day activities of the individual.” Id. at 1379. Said

another way, “the critical factor in making this determination is the authority of the

principal to control the detailed physical performance of the contractor.” Logue v.

United States, 412 U.S. 521, 527–28, 93 S. Ct. 2215, 2219 (1973).

       We hold that Dr. Riggans was an independent contractor, not a federal

employee. Dr. Riggans was an employee of Vascular Radiology Associates II

(VRA). The contract between VRA and the VAMC states that VRA shall render

services to the VAMC “in its capacity as an independent contractor,” and that

VRA shall provide its workers compensation, insurance, health examinations,

income tax withholding, and social security payments. More importantly, the

contract expressly states:

      The Government may evaluate the quality of professional and
      administrative services provided but retains no control over
      professional aspects of the services rendered, including by example,
      the Contractor’s or its health-care providers’ professional medical
      judgment, diagnosis, or specific medical treatments. The Contractor
      and its health-care providers shall be liable for their liability-producing
      acts or omissions.1


       1
        This language is almost identical to the language in the contract at issue in Tsosie v.
United States, 452 F.3d 1161 (10th Cir. 2006), in which the Tenth Circuit held that a doctor was
an independent contractor—not an employee—for purposes of the FTCA. Id. at 1164–65.
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Further, VRA—not the VAMC—established Dr. Riggans’s work schedule, and Dr.

Riggans spent only one-fourth of his time working at the VAMC.

      Beyond the terms of the contract, the parties’ performance suggests that the

VAMC did not control Dr. Riggans’s day-to-day activities. Dr. Riggans testified

that VAMC policies did not “dictate[] . . . any specific procedure” he performed.

He added that “[t]he steps that [he went] through to complete [a] procedure [were]

100 percent on [him].” Similarly, Dr. Gautam Agarwal—a staff surgeon at the

VAMC—stated that “the [VAMC] vascular surgeons do not tell the contract

interventional radiologists employed by [VRA] how to perform a procedure, nor

do they give technical guidance into the course of action that a contract

interventional radiologist should take.” As the district court put it, “[t]he VAMC

physicians consulted with Dr. Riggans about patients, but did not tell him how to

conduct procedures or how to treat an ailment.”

      Dutton argues that because the VAMC supplied Dr. Riggans’s equipment,

facilities, and patients, he should be treated as its employee. However, we agree

with the Tenth Circuit that this makes little difference: “[w]hen a physician shows

up to work in today’s world—either as an independent contractor or a full-fledged

employee—he no longer is likely to carry all relevant medical instruments in a

black satchel.” Tsosie, 452 F.3d at 1164. Whether the VAMC provided Dr.

Riggans with equipment does not affect our analysis of its control of his day-to-day

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activities. Dutton also points to Dr. Riggans’s VAMC identification card which

listed him as an “employee.” However, this detail does not overcome the myriad

other facts suggesting he was an independent contractor. In short, the district court

did not err in finding that Dr. Riggans was an independent contractor for purposes

of the FTCA. 2

                                               IV.

       Next, we address the district court’s grant of the government’s motion to

exclude the expert testimony of Dr. Michael A. Bettmann.

                                               A.

       Dutton preliminarily argues that because this case arises under federal law,

the district court should have applied the Federal Rules of Evidence, not O.C.G.A.

§ 24-7-702. To the contrary, in McDowell v. Brown, 392 F.3d 1283 (11th Cir.

2004), we held that O.C.G.A. § 24-7-702 applies where a federal court exercises

supplemental jurisdiction over a Georgia medical malpractice action. Id. at 1295.

Although the general rule is that the Federal Rules of Evidence govern in diversity

suits, this Court reasoned that Georgia’s evidentiary rules are so intimately


       2
          Our decision in Bravo v. United States, 532 F.3d 1154 (11th Cir. 2008), is readily
distinguishable. The contract in that case specifically stated that “[t]he contractor OB/GYN
physician activities shall be subject to day-to-day direction by Navy personnel in a manner
comparable to the direction over Navy uniformed and civil personnel engaged in comparable
work.” Id. at 1160 (alteration omitted). The contract also specified that contract doctors must
“comply[] with directions received from Navy hospital professional personnel in the course of
patient care activities.” Id. (alteration adopted). There are no such provisions in VRA’s
contract.
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intertwined with its medical malpractice laws that it would create an Erie conflict

not to apply the state evidentiary rules in federal court. Id.

       This, of course, is an FTCA case, not a supplemental-jurisdiction case, so

the Erie doctrine does not apply. However, in FTCA cases, “the extent of the

United States’ liability . . . is generally determined by reference to state law.”

Molzof v. United States, 502 U.S. 301, 305, 112 S. Ct. 711, 714 (1992). And

Federal Rule of Evidence 601 instructs that in civil cases, “state law governs the

witness’s competency regarding a claim or defense for which state law supplies the

rule of decision.” Thus, although not controlling, we believe that our decision in

McDowell is persuasive here. Georgia’s evidentiary rules for a physician’s expert

testimony are so intimately intertwined with its malpractice laws that the rules

must apply in an FTCA case for medical malpractice. That understanding accords

with the holding of at least one sister Circuit. See Liebsack v. United States, 731

F.3d 850, 855–56 (9th Cir. 2013) (holding, in an almost identical case, that Alaska

Statute § 09.20.185 applies in a FTCA action based on medical negligence). In

short, we agree with the district court that O.C.G.A. § 24-7-702 applies here. 3

                                              B.

       Next, Dutton argues that even applying Georgia’s evidentiary rules, the

       3
         Dutton argues that O.C.G.A. § 24-7-702 should not apply because the Georgia Supreme
Court has held that the statute is procedural. See Nathans v. Diamond, 654 S.E.2d 121 (Ga.
2007). However, Nathans decided that statute was procedural only for purposes of retroactivity,
and said nothing about its application in federal courts. Id. at 125.
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district court wrongly excluded the testimony of Dr. Michael Bettmann. “We

review a district court’s ruling on the admissibility of expert testimony for abuse of

discretion.” McDowell, 392 F.3d at 1294. “[W]e do not apply a stricter standard

even though the ruling results in a summary judgment.” Id. “[T]o qualify as an

expert in a medical malpractice action [in Georgia], the witness must (1) have

actual knowledge and experience in the relevant area through either ‘active

practice’ or ‘teaching’ and (2) either be in the ‘same profession’ as the defendant

whose conduct is at issue or qualify for the exception to the ‘same profession’

requirement.” 4 Hankla v. Postell, 749 S.E.2d 726, 729 (Ga. 2013).

       “In order to determine whether OCGA § 24-7-702(c) authorizes the

admission of [expert] testimony, it is necessary in this case to accurately state both

the area of specialty at issue and what procedure or treatment was alleged to have

been negligently performed.” Toombs v. Acute Care Consultants, Inc., 756 S.E.2d

589, 593 (Ga. Ct. App. 2014) (quotation marks omitted). Georgia courts have

made clear that “the area of specialty is dictated by the allegations in the

complaint, not the apparent expertise of the treating physician.” Id. Here,

Dutton’s complaint alleges negligence for failing “to implement emergent medical

       4
         “Under the exception, a proffered expert who is a physician is permitted to qualify as an
expert as to a non-physician health care provider, but only if she has knowledge regarding the
relevant standard of care as a result of having supervised, taught, or instructed such non-
physician health care providers.” Hankla, 749 S.E.2d at 729 (alteration omitted) (quotation
marks omitted). We agree with the district court that Dr. Bettmann is not competent to testify as
to non-physician conduct because “[t]here is nothing in the record showing that [he] taught,
supervised, or instructed non-physician health care providers.”
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care and treatment” following “an acute thromboembolic event . . . in Mr. Dutton’s

right leg.” Thus, as the district court found, “the primary treatment at issue is the

management of an emergent leg ischemia in a patient with critical mesenteric

ischemia.”

      The district court did not abuse its discretion when it excluded Dr.

Bettmann’s testimony about whether the defendants negligently managed the care

of a patient suffering from critical ischemia. The important distinction here is

between vascular radiology and vascular surgery. According to Dr. Bettmann, “the

training in vascular surgery is in surgical procedures,” while “[t]he training in

[vascular] radiology is in imaging and use of imaging to perform procedures.” Dr.

Bettmann testified that he was board certified in vascular and interventional

radiology, but was not certified or trained in vascular surgery. He testified that

interventional radiologists are not trained to perform surgeries and that he had

never done one himself.

      His lack of expertise as a vascular surgeon, or in broadly treating a patient

suffering from critical ischemia, is fatal to his ability to testify about the VAMC’s

alleged negligence in this case. Dr. Bettmann’s primary contention was that once

Bartow Dutton showed symptoms like a cold, pulseless leg, the VAMC team

should have performed one of two procedures within four to six hours: either (1)

thrombolytic therapy or (2) surgical thrombectomy. Thrombolytic therapy

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involves the use of drugs to break up or dissolve blood clots. However, Dr.

Bettmann actually testified that he could “not say[] that [thrombolytic therapy was]

something that should be done” because of Dutton’s ischemia of his intestines.

See also id. (“I think you could make a good point about the contraindication.”).

As for surgical thrombectomy, Dr. Bettmann had never performed the procedure

that he thought should have been done here, and testified that he did not “know

how hard or easy it would have been in Mr. Dutton.”

      More broadly, the government’s expert—Dr. Jacob Robison—summarized

the problem inherent in Dr. Bettman’s proposed testimony:

      [I]nterventional radiologists are not trained as vascular surgeons and
      have no experience with surgical judgment and techniques required to
      manage patients with a complex arterial problem in the context of a
      life threatening situation.
      As an interventional radiologist, Dr. Bettmann . . . has no clinical
      experience in performing vascular surgery procedures, like the
      surgery that he indicates should have been performed on Mr. Dutton
      by Dr. Ramirez on the evening of June 2, 2010.

Speaking to Dutton’s situation here, Dr. Robinson emphasized that the

“simultaneous compromise of circulation to both the right leg and the intestine”

presented “a very difficult and challenging problem from the beginning.” Lytic

therapy was “relatively contraindicated . . . as the [intestinal] bleeding may have

been exacerbated by the clot-dissolving therapy.” And “[t]he mesenteric ischemia

was judged immediately more life threatening than the leg ischemia appeared to be


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immediately limb threatening, and concerns about the bowel preempted any

attempt to save the leg with a long, complex surgery.” Although Dutton may be

right that “it does not take a vascular surgeon to know that a blood clot which

prevents blood flow to a leg will cause that limb to die,” the district court was right

that it “takes a vascular surgeon to know when intervention to save the limb of a

critically ill patient will not kill the patient in the process.” The district court did

not abuse its discretion.

                                            V.

       Because the district court did not abuse its discretion when it excluded Dr.

Bettmann’s testimony, we also affirm the district court’s grant of summary

judgment. Under Georgia law, “[t]o recover in a medical malpractice case, a

plaintiff must demonstrate, by expert testimony, a violation of the applicable

medical standard of care and also that the purported violation of or deviation from

the proper standard of care is the proximate cause of the injury sustained.” Porter

v. Guill, 681 S.E.2d 230, 235 (Ga. Ct. App. 2009) (alterations adopted) (emphasis

added) (quotation marks omitted). Because Dutton’s only expert was properly

excluded, the United States was entitled to summary judgment.

       AFFIRMED.




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