          United States Court of Appeals
                        For the First Circuit


Nos. 11-1619, 12-1098

              CYNTHIA JACKSON, as Administratrix of
                the Estate of Leonard J. Giguere,

                        Plaintiff, Appellant,

                                 v.

                           UNITED STATES,

                        Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

        [Hon. F. Dennis Saylor, IV, U.S. District Judge]


                               Before

                       Lynch, Chief Judge,
              Torruella and Stahl, Circuit Judges.


     Brian P. Burke for appellant.
     Anton P. Giedt, Assistant United States Attorney, with whom
Rayford A. Farquhar, Assistant United States Attorney, and Carmen
Milagros Ortiz, United States Attorney, were on brief, for
appellee.



                          February 12, 2013
            LYNCH, Chief Judge.    Leonard Giguere served his country

in the U.S. Army in the Vietnam War.          He was injured there in a

landmine explosion, causing a diaphragmatic hernia which affected

the arrangement of some of his internal organs. That rearrangement

would have consequences four decades later. On May 6, 2005, at age

58,    Giguere   underwent   surgery   at   the   Veterans   Administration

Hospital ("VA Hospital") in West Roxbury, Massachusetts.           He died

on May 10, 2005.

            Giguere's estate brought a medical malpractice claim

under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346.

After a five-day bench trial, the court entered judgment for the

United States with extensive findings of fact and conclusions of

law.    See Jackson v. United States (Jackson I), No. 08-40024-FDS

(D. Mass. Mar. 25, 2011).      The court later denied a motion for new

trial, see Jackson v. United States (Jackson II), No. 08-40024-FDS,

2011 WL 6301425 (D. Mass. Dec. 15, 2011), and amended its previous

findings and conclusions, see Jackson v. United States (Jackson

III), No. 08-40024-FDS, 2011 WL 6300996 (D. Mass. Dec. 15, 2011).

            On appeal, the estate asserts that the court committed an

error of law as to the standard of care it used, abused its

discretion as to several of its evidentiary rulings, and made

factual findings that the evidence did not support.            We conclude

that the district court did not err and affirm its judgment.




                                   -2-
                                       I.

            Decedent Giguere served in the U.S. Army in the Vietnam

War. There, he was injured by a landmine explosion that caused him

to suffer a diaphragmatic hernia.                As a result, a portion of

Giguere's stomach and his upper intestines moved from his stomach

cavity into the chest cavity where his heart and lungs were

located.    Giguere's esophagus thus did not run downward from his

mouth to his stomach, but was bent into an acute angle.

            On May 4, 2005, Giguere, then 58 years old, was admitted

to the VA Hospital, complaining of exhaustion, chest tightness, and

elevated blood pressure. VA Hospital staff determined that Giguere

had suffered a heart attack and that he had severe systemic heart

disease posing a constant threat to life, which necessitated

coronary artery bypass graft ("CABG") surgery.             CT scans revealed

Giguere's    diaphragmatic     hernia,       and   Giguere's     cardiothoracic

surgeon, Dr. Michael Crittenden, determined that the hernia would

not pose significant      operative         or   postoperative    difficulties.

Giguere was administered anesthesia and underwent CABG surgery on

May 6, 2005.    The surgery was performed without complications.

            An endotracheal tube was inserted into Giguere's lungs

during his surgery, then anesthesiologists attempted to insert a

nasogastric    ("NG")   tube    into        Giguere's   stomach    to   prevent

aspiration (vomiting into the lungs) during the removal of the

endotracheal tube.      The anesthesiologists were not able to place


                                    -3-
the   NG   tube   into    Giguere's      stomach,     and   later   that   day    Dr.

Crittenden was unable to correctly re-position the NG tube in

Giguere's stomach. Dr. Crittenden concluded that Giguere's unusual

anatomy was preventing the NG tube's insertion and that further

attempts would present risks to Giguere, including the risk of

perforation, infection, and a need for further surgery.

            On May 7, 2005, Giguere's endotracheal tube was removed

without    incident.       By   that     evening,     Giguere   appeared     to    be

recovering normally.         At 6:30 p.m., on May 7, another surgical

resident ordered that Giguere's diet be "advanced as tolerated,"

meaning Giguere would be given clear liquids, then full liquids,

and then a regular cardiac diet -- a low-fat, low-sodium, low-

cholesterol meal -- if each were tolerated.

            On    the    morning   of     May    8,   Giguere   appeared     to   be

tolerating    clear      liquids   and    also   to   be    recovering     from his

surgery; he was able to get out of bed and walk briefly.                   However,

symptoms of an ileus -- failure of liquids and solids to progress

along the digestive tract -- began showing that morning. Cessation

of digestive function is common after patients are administered

general anesthesia, but an adynamic ileus occurs when digestive

function does not return after a normal recovery period.                           An

adynamic ileus can lead to distention and rupture of the stomach

and intestines, cut-off of blood supply leading to tissue death,

and vomiting and aspiration.              A cardiac patient with Giguere's


                                         -4-
anatomical configuration is also at risk that an ileus will cause

cardiopulmonary stress.

            On the morning of May 8, x-rays and Giguere's difficulty

in breathing suggested that he might have developed an ileus.               Dr.

Crittenden    believed      Giguere's     gastrointestinal     function     was

returning    because   he     was   passing   gas,    making   bowel    sounds,

ambulating, and taking fluids.            To treat symptoms of an ileus,

physicians can usually insert an NG tube into the stomach to

evacuate    its   contents    and   relieve   distention.       However,    Dr.

Crittenden was concerned that attempting to insert an NG tube into

Giguere's stomach might perforate his esophagus.

            At 7:00 p.m. on May 8, Nurse John O'Sullivan recorded

that Giguere consumed 60% of his diet and 200 cc's of clear

liquids. West Roxbury VA Hospital Nurse Kathleen Doherty stated in

her deposition that this notation meant Giguere was given solid

food. The government did not call O'Sullivan at trial, but Doherty

testified at trial that Giguere could not have been given solid

food that evening because no order for solid food had been sent to

the VA Hospital kitchen via the hospital's computerized system.

            On May 9, x-rays taken at 5:30 a.m. and 9:15 a.m. showed

no   significant    changes    in   the   condition    of   Giguere's    ileus.

Giguere was transferred to a step-down postsurgical unit at 10:00

a.m. that morning. Over the next three hours, nurses recorded that

Giguere's abdomen was distended and taut, that he was short of


                                      -5-
breath   and   experiencing    heartburn,   that   his   heart   rate   was

elevated, and that he reported feeling very full.

           At 1:15 p.m. on May 9, Giguere began vomiting, which

relieved his heartburn.       Dr. Crittenden had become concerned that

Giguere had developed an ileus that would not resolve, and at 1:30

p.m. he ordered a consultation with the gastroenterology ("GI")

department.    In response, gastroenterologist Elihu Schimmel and GI

resident Reina Pai examined Giguere and concluded he had bypassed

the need for an NG tube because he had been passing gas and having

bowel movements.     Dr. Schimmel was not aware that Giguere had

vomited, which would have temporarily decompressed his stomach.

           Throughout the evening of May 9, Giguere experienced

nausea, vomiting, distention, increased heart rate, and difficulty

breathing.     At 8:50 a.m. on the morning of May 10, Drs. Schimmel

and Pai visited Giguere again, noted his worsening condition, and

recommended that an NG tube be placed fluoroscopically (using a

moving x-ray image) to decompress Giguere's stomach. At 9:00 a.m.,

Giguere was taken to the VA Hospital radiology department, where a

radiologist, Stephen Gerzof, attempted to insert an NG tube into

Giguere's stomach fluoroscopically.         Dr. Gerzof twice tried to

advance the tube, but each time Giguere began vomiting and Dr.

Gerzof halted the procedure.

           Dr. Gerzof then attempted to use a J-tipped guide wire,

inserted down the NG tube, to help him navigate the tube past the


                                    -6-
curve in Giguere's esophagus.      As Dr. Gerzof attempted to advance

the wire through the NG tube, Giguere began vomiting, his blood

pressure dropped, he stopped breathing, and he went into cardiac

arrest.   Dr. Gerzof called an emergency code and surgical staff

responded,   but   they   were   unable   to   revive   Giguere,   who   was

pronounced dead at 11:10 a.m. on May 10.

          On May 11, an autopsy was conducted on Giguere at which

Drs. Crittenden and Gerzof were present.          The cause of death was

determined to be:

     Cardiac arrest: acute left ventricular myocardial
     infarction (hours to days), Hypostatic, compressed left
     lung[.]   Secondary to gastric and colonic eventration
     through non-patent left diaphragm hiatus, secondary to
     abdominal ileus of right colon with gaseous obstipation
     and abdominal pressure.

          On May 18, the VA Hospital's surgical service held a

weekly review of medical outcomes -- a Surgical Service Quality

Improvement Conference ("SSQIC") -- at which Giguere's case was

discussed.   The surgical service staff then prepared a written

evaluation of Giguere's care and treatment (the "SSQIC Comments").

                                   II.

          Cynthia Jackson, one of Giguere's two daughters, brought

suit against the United States as administratrix of Giguere's

estate on February 14, 2008, asserting claims under the FTCA for

Giguere's wrongful death, as well as for his conscious pain,

suffering, and emotional distress.



                                   -7-
            On July 10, 2009, the estate moved to compel production

of   the   SSQIC   Comments.      The    government   opposed     the   motion,

contending that the SSQIC Comments were protected under 38 U.S.C.

§ 5705 and 38 C.F.R. § 17.501 as documents produced in a focused

review.     The district court referred the estate's motion to a

magistrate    judge,   who     ordered    the   Government   to   produce   an

unredacted version of the SSQIC Comments.             The magistrate judge

concluded that SSQIC Comments did not comply with Veterans Health

Administration ("VHA") Directive 2004-054 because some, but not

all, pages of the document were marked as confidential, which the

magistrate judge considered to be a precondition to assert the

privilege.    The government objected to this order, and on April 2,

2010, the district court reversed.

            A bench trial commenced on April 12, 2010 and concluded

on April 16, 2010.      At trial, plaintiff's expert witness, Andrew

Warner, M.D., testified that Giguere's post-surgical treatment at

the VA Hospital fell below the standard of care.          Dr. Warner stated

that an ileus posed a greater risk to Giguere because his abdominal

organs were pressing against his lungs.            He opined that when Dr.

Crittenden was unable to insert an NG tube into Giguere on May 6,

the tube should have been inserted endoscopically (using a small

optical camera) or fluoroscopically.            Dr. Warner also stated that

Giguere should not have been given anything to eat or drink after




                                        -8-
he exhibited signs of an ileus, and that giving food and drink to

Giguere likely exacerbated his bowel distention.

          The government's expert witness, James Richter, M.D.,

testified that a post-operative ileus almost always resolves in a

few days, and that feeding a patient and having a patient move

around usually helps an ileus to resolve.        Dr. Richter also

testified that Giguere faced "an underlying constant threat to his

life" from his heart disease, and that advancing an NG tube into

Giguere's stomach was contraindicated because of the risk of

perforation and bleeding.   Dr. Richter testified, over objection,

that endoscopic placement of an NG tube posed the same risks; he

also testified that endoscopic placement would require infusing air

into Giguere, which might compromise his ability to expand his

lungs.   The estate objected to Dr. Richter's testimony on this

point because the government did not provide notice in its expert

report that Dr. Richter would testify regarding endoscopy.     The

district court allowed Dr. Richter's testimony, but permitted the

estate to supplement the record if necessary. The estate submitted

a rebuttal affidavit from Dr. Warner in which he stated that he had

routinely placed NG tubes endoscopically in patients with hernias.

          After trial, on March 25, 2011, the district court

concluded that "[w]ith the benefit of hindsight, it seems likely

that a different course of treatment might have led to a different

outcome," and that "Mr. Giguere may have received less-than-perfect


                                -9-
care."   Jackson I, slip op. at 3.          However, the court concluded

that "the conservative approach adopted by the VA physicians did

not breach the standard of care," id. at 4, and entered judgment

for the United States.      The estate filed a motion for a new trial

on April 25, 2011, and then filed a notice of appeal from the

district court's judgment on May 26, 2011.           On December 15, 2011,

the district court denied the estate's motion but made minor

amendments to its findings of fact and conclusions of law. Jackson

II, 2011 WL 6301425, at *4 n.2, *7, *11; see also Jackson III, 2011

WL 6300996.    On January 13, 2012, the estate filed a second notice

of appeal.

                                    III.

A.          The District Court's Application of the Standard of Care

            The   estate   opens   with    the   legal   argument    that   the

district court employed an erroneous standard of care.              The estate

is wrong.    Under Massachusetts law, "the standard of care is based

on the care that the average qualified physician would provide in

similar circumstances."       Palandjian v. Foster, 842 N.E.2d 916,

920-21 (Mass. 2006).       The estate argues that the district court

erred by failing to consider Giguere's "particular circumstances."

The district court explicitly qualified each of its findings as to

the quality of Giguere's care by stating that Giguere's physicians

did not violate the standard of care "under the circumstances."

Jackson I, slip op. at 26-27, 29, 30; Jackson III, 2011 WL 6300996,


                                    -10-
at *17-19.    Each finding was preceded by a detailed discussion of

the particular circumstances of Giguere's case.

            The estate's real argument is that the district court

clearly erred in finding that Dr. Crittenden did not violate the

standard of care by not inserting an NG tube between May 6 and May

10, 2005.    The estate argues that "Dr. Warner testified [that] NG

tube placement for postoperative patients with hiatal hernia is

easily accomplished using endoscopy" (emphasis added).     But that

testimony hardly shows error.    Dr. Richter testified that "there

was a 'reasonable likelihood' . . . that the ileus would resolve on

its own," and that "the option of inserting a tube endoscopically

into the stomach raised risks of perforation and bleeding as well

as other risks associated with topical anesthesia and infusion of

air."   Jackson I, slip op. at 26; Jackson III, 2011 WL 6300996, at

*16.      There were two differing expert opinions regarding the

necessity and risks of endoscopically inserting an NG tube into

Giguere.    Where, as here, "there are two permissible views of the

evidence, the factfinder's choice between them cannot be clearly

erroneous."      Anderson v. City of Bessemer, 470 U.S. 564, 573

(1985).

B.          Challenges to the District Court's Findings of Fact

            1.     The District Court's Factual Finding That Giguere
                   Had Not Been Given Solid Food

            The court found that "Mr. Giguere was never served, and

did not eat, solid food while at the West Roxbury VA."   Jackson I,

                                -11-
slip op. at 13; Jackson III, 2011 WL 6300996, at *8.                    The estate

argues that this finding was important because Dr. Warner testified

that giving Giguere solid food after he showed signs of an ileus

breached the standard of care. However, Dr. Richter testified that

feeding a patient who had developed an ileus was recommended

because it usually helped an ileus to resolve.               In any event, the

estate   argues    that    the    district     court's   finding   was     clearly

erroneous, but its argument is based on two sets of equivocal or

conflicting testimony.

           First, Dr. Schimmel recorded in his notes and testified

that   Giguere    was    "eating."       But   he    testified   that    he   never

determined if Giguere "was eating solids or only liquids" and that

liquids could include Jell-O.            The estate's expert, Dr. Warner,

agreed   that    the    term    "eat"   does   not   "presume    the    intake   of

something solid," and that "eating" "could be liquid; it could be

full liquids; it could be soft solids."

           Second,      nurse    John   O'Sullivan     recorded    that    Giguere

consumed 60% of his "diet" and 200 cc's of clear liquids on the

evening of May 8, 2005. Nurse Doherty testified at trial that this

meant that Giguere "had 60 percent of the full liquids that was

[sic] on his tray," and the district court found that "[a]lthough

it is unclear, it is likely that nurse O'Sullivan intended to

indicate that Mr. Giguere ate 60% of a full liquid tray and 200

cc's of clear liquids."          Jackson I, slip op. at 13; Jackson III,


                                        -12-
2011 WL 6300996, at *8.    The estate notes that other nurses at the

VA Hospital who had given Giguere meals recorded the amounts of

liquids consumed using cubic centimeters, not as a percentage of

the meal, but Doherty explained that "[p]eople chart different."

The estate also notes that Doherty agreed in her deposition that

Giguere "was eating solid food by the end of your shift on May

8th." But at trial, Doherty explained that she did not recall this

statement, and that Giguere could not have been given solid food

that evening because the VA Hospital's computerized system did not

reflect that an order for solid food had gone to the kitchen.

          The   district   court    explained   that    its   finding   was

"[b]ased on the evidence as a whole —- including the medical

records as interpreted in light of the trial testimony, and the

Court's observations of Nurse Doherty's testimony as a witness."

Jackson II, 2011 WL 6301425, at *4.       A "reviewing court must give

due regard to the trial court's opportunity to judge the witness's

credibility."   Fed. R. Civ. P. 52(a)(6).        Given the conflicting

evidence at trial, we are not left here with "the definite and firm

conviction that a mistake has been committed."         Anderson, 470 U.S.

at 573 (quoting United States v. U.S. Gypsum Co., 33 U.S. 364, 395

(1948)) (internal quotation mark omitted).

          2.      The Court's Findings As To Dr. Gerzof's Testimony

          In ruling upon the estate's motion for a new trial, the

district court amended its findings to read: "After reviewing the


                                   -13-
CT scans of Mr. Giguere's stomach and colon, Dr. Gerzof believed

that he could 'push and push' an NG tube, but that '[i]t would

never go anywhere,' given the unusual anatomy of Mr. Giguere's

intestinal tract."   Jackson II, 2011 WL 6301425, at *7 (alteration

in original); Jackson III, 2011 WL 6300996, at *12 (alteration in

original).   The estate argues on appeal that this finding is still

clearly erroneous, since "Dr. Gerzof was [sic] actually testified

that [he] felt he could not insert an NG tube without a J tip guide

wire."   The district court's finding accurately represented Dr.

Gerzof's testimony, which explained that he "tr[ied] to insert that

J wire rather than just continuing with the NG tube" because "I

felt that I could push and push that tube.      It would never go

anywhere."   Moreover, the district court's ruling on the estate's

motion for a new trial makes clear that the court did not take Dr.

Gerzof's testimony to mean that the NG tube could not be advanced

even if a J tip guide wire were used.     See Jackson II, 2011 WL

6301425, at *6-7.

C.        Admission of Dr. Richter's     Testimony   on   Endoscopic
          Placement of an NG Tube

          Next, the estate argues that the district court erred in

permitting Dr. Richter to "offer[] testimony regarding the safety

of an endoscopic NG tube insertion" when he "fail[ed] to even

mention the issue in his expert report even after it was discussed

in Jackson's expert report."     "[R]eview of decisions to admit



                               -14-
expert testimony is for abuse of discretion."     Mitchell v. United

States, 141 F.3d 8, 13 (1st Cir. 1998).

          The Government conceded at trial that Dr. Richter's

expert report did not "mention or rebut the endoscopy argument that

Dr. Warner makes."    Even if Dr. Richter's report failed to include

"a complete statement of all opinions the witness will express and

the basis and reasons for them," Fed. R. Civ. P. 26(a)(2)(B)(i),

the government was permitted to present the omitted testimony from

Dr. Richter so long as "the failure was substantially justified or

is harmless," Fed. R. Civ. P. 37(c)(1).    Moreover, we "look[] to a

variety of factors in assessing a claim of error under Rule 26,"

including "the ability of the [opposing party] to formulate a

response."     Curet-Velázquez v. ACEMLA de P.R., Inc., 656 F.3d 47,

56 (1st Cir. 2011) (alteration in original) (quoting Licciardi v.

TIG Ins. Grp., 140 F.3d 357, 363 (1st Cir. 1998)) (internal

quotation mark omitted).

          In overruling the estate's objection to Dr. Richter's

testimony, the district court stated that "I'm going to allow some

testimony as to what those risks were, and if it's necessary before

the evidence closes in fairness to permit either additional time to

the plaintiff or -- or rebuttal testimony, we'll take that up at a

later time."    At the close of evidence, the district court told the

estate's counsel that "[i]f you want to file a motion to supplement

the record in some way in that regard or to add additional


                                 -15-
evidence, I will entertain it."            The estate's counsel responded

that   he   "found   Dr.    Richter   to   be   helpful   in   some   regards."

Nonetheless, the estate later submitted a rebuttal affidavit from

Dr. Warner that the district court admitted into evidence.

            The estate argues that it was prejudiced by its inability

to present this response in the form of live testimony, claiming

that because Dr. Warner's rebuttal affidavit was not cited in the

district court's findings of fact and conclusions of law, "it is

impossible to conclude that this critical piece of testimony . . .

was given any deliberation, let alone the thoughtful consideration

it deserved."     The key opinions that the estate identifies in the

rebuttal affidavit were presented by Dr. Warner at trial, and the

district court described this testimony in its findings of fact and

conclusions of law.        Jackson I, slip op. at 24; Jackson III, 2011

WL 6300996, at *15.        The district court was under no obligation to

cite both Dr. Warner's live testimony and his rebuttal affidavit

regarding these issues.

            Since the estate was given an opportunity "to formulate

a response" to Dr. Richter's testimony, Curet-Velázquez, 656 F.3d

at 56, and has demonstrated no prejudice from the admission of this

testimony, there was no abuse of discretion here.

D.          Denial of Plaintiff's Motion to Compel Production of a
            Privileged and Confidential Document

            The   district    court   overruled    the    magistrate judge's

determination that the VA Hospital was required to produce the

                                      -16-
SSQIC Comments. The magistrate judge had determined that the four-

page document did not comply with VHA Directive 2004-054 because

only its first two pages were marked as confidential, and that the

document was therefore not privileged.

            38 U.S.C. § 5705 and 38 C.F.R. § 17.501 together make

documents produced by the VA at focused reviews confidential and

privileged.   The estate argues that although "the weekly surgical

review constituted a privileged Focused Review," the VA waived

privilege because the VA Hospital "failed to comply with its

agency's own directives because only the first page of these [SSQIC

Comments]   contained    'language    mandating    protection,'"     as   VHA

Directive   2004-054    required,    and   that   therefore   no   privilege

attached.

            The Acting Under Secretary for Health of the VHA issued

VHA Directive 2004-054 on September 29, 2004, and it expired on

July 31, 2009.   VHA Directive 2004-054(g)(5)(c) states that:

     Protected peer review documents for quality improvement
     include all reviews of patient care by an individual
     provider that are performed for the purpose of improving
     the quality of health care and/or improving the
     utilization of health care resources. In order for the
     documents generated by a peer review to be protected
     confidential [sic] under 38 U.S.C. § 5705, and its
     implementing regulations, each peer review must be
     designated in writing as being conducted and/or prepared
     for quality improvement and/or resource utilization
     purposes prior to the initiation of the peer review.
     This designation can be issued by the Under Secretary for
     Health (for all VHA facilities), by a Veterans Integrated
     Services Network (VISN) Director (for VHA facilities
     within that VISN), and/or by the facility Director (for
     the individual facility).

                                    -17-
            1.       Language mandating protection under 38
                     U.S.C. § 5705 (such as the language in
                     following subpar. 2g(5)(c)2) must be clearly
                     and visibly placed on every page of every
                     document to be made confidential.

            2.       All documents associated with this activity
                     need to be treated as strictly confidential,
                     unless determined otherwise after careful
                     review (with documentation) by qualified VHA
                     personnel.     The following statement is
                     recommended for required documentation . . .

            The district court correctly ruled that:

     VHA Directive 2004-054 indicates that privileged
     documents should be marked on every page. The obvious
     purpose of that requirement is to ensure that such
     documents are appropriately identified, so that they are
     not   inadvertently   produced  or   intermingled   with
     nonprivileged documents. There is no indication that the
     VHA (or Congress) intended that an otherwise-privileged
     document should lose its protection because of a minor
     clerical error in marking the document.

Nothing in the language of the directive mandates that we conclude,

as the estate would have us do, that where a four-page document is

clearly     marked   on   its   first    two   pages   as   confidential,

confidentiality is lost as to the remaining pages.          VHA Directive

2004-054(g)(5)(c)(1) and (2), when read together, demonstrate that

the requirement imposed was a clerical one meant to ensure that

documents were not "inadvertently produced or intermingled."          The

estate does not argue that 38 U.S.C. § 5705 and 38 C.F.R. § 17.501

-- which extend privilege and confidentiality to all documents

resulting from protected activities -- do not apply to the SSQIC

Comments.     There was no risk of confusion or prejudice.            The

argument is without merit.

                                  -18-
                               IV.

          The judgment of the district court is affirmed. No costs

are awarded.




                              -19-
