                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                         September 7, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
EVELYN HOHENBERGER, individually
and as representative of the estate of
Thomas Hohenberger,

      Plaintiff - Appellant,

v.                                                          No. 15-1494
                                                   (D.C. No. 1:14-CV-00337-CBS)
UNITED STATES OF AMERICA,                                     (D. Colo.)

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, McKAY, and O’BRIEN, Circuit Judges.
                 _________________________________

      Thomas Hohenberger had been receiving medical care from the Department of

Veterans Affairs (VA) when he died from coronary artery disease that had not been

diagnosed or treated. His widow, Evelyn Hohenberger, acting individually and as the

representative of his estate, sued the United States for medical malpractice under the

Federal Tort Claims Act (FTCA). After a bench trial, the district court found in favor



      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
of the United States, and Mrs. Hohenberger appeals. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

                                   BACKGROUND

      Mr. Hohenberger, born in 1946, was a Vietnam veteran who received medical

care from a VA facility in Grand Junction, Colorado. Between 1998 and July 2011,

his primary care physician was Paul Preston, M.D. While under Dr. Preston’s care,

Mr. Hohenberger was treated for several conditions, including chronic obstructive

pulmonary disease (COPD), osteoarthritis, low testosterone, and post-traumatic stress

disorder (PTSD). He was a smoker and considered to be an alcoholic. Dr. Preston’s

last exam of Mr. Hohenberger was in February 2011.

      In July 2011, Kathleen Ono, D.O., replaced Dr. Preston as Mr. Hohenberger’s

primary care physician. Dr. Ono, however, never saw Mr. Hohenberger in person.

On September 24, 2011, he died suddenly at home. The cause of death was ischemic

heart disease due to coronary artery atherosclerosis. Mr. Hohenberger had not been

diagnosed with or treated for coronary artery disease.

      Mrs. Hohenberger, on behalf of herself and her husband’s estate, filed an

administrative tort claim and then this FTCA suit. She alleged that Dr. Preston failed

to properly diagnose and treat Mr. Hohenberger’s coronary artery disease, leading to

his death. The parties consented to have a magistrate judge preside over the case and

then filed several pre-trial motions.

      Mrs. Hohenberger moved for summary judgment as to liability and moved to

exclude the United States’ expert witness. The district court denied both of those

                                          2
motions. The United States filed a motion to exclude Mrs. Hohenberger’s expert

witness, which the district court also denied. The United States was more successful

with its motion to preclude Mrs. Hohenberger’s expert witness from testifying about

Dr. Ono’s performance. The district court granted that motion because the complaint

focused on Dr. Preston’s negligence and Mrs. Hohenberger had never moved to

amend to include allegations about Dr. Ono. Thus, the court concluded, Dr. Ono’s

performance was not relevant to the case as Mrs. Hohenberger had framed it and

testimony about Dr. Ono would not assist the court in deciding the issues before it.

      The district court conducted a three-day bench trial. In addition to hearing

testimony from Mrs. Hohenberger, the court heard testimony from three medical

witnesses: (1) Dr. Preston, who is board-certified in internal medicine and who

testified both as a fact witness and as an expert in primary care medicine; (2) the

United States’ expert witness, John Johnson, M.D., who is board-certified in family

medicine; and (3) Mrs. Hohenberger’s expert witness, Michael Jones, M.D., who is

board-certified in cardiovascular medicine and was board-certified in internal

medicine from 2000 to 2010. The medical records showed that over the years

Mr. Hohenberger presented with various complaints, including shortness of breath,

fatigue, and lightheadedness. The medical witnesses differed on the proper

interpretation of those complaints and the appropriate standard of care for a primary

care physician.

      Dr. Preston reviewed his treatment of Mr. Hohenberger. He testified that

Mr. Hohenberger had no symptoms of coronary artery disease. He did not present

                                           3
with the primary symptom, angina, and the symptoms he reported were more

consistent with other conditions, such as COPD and low testosterone. Dr. Preston

opined that the standard of care for an asymptomatic patient was to conduct a yearly

cardiovascular risk assessment and to treat modifiable risk factors for coronary artery

disease. He testified that it was his practice to do a cardiovascular risk assessment at

every primary care visit. He identified smoking as Mr. Hohenberger’s only

modifiable risk factor, and he testified that he consistently advised Mr. Hohenberger

to stop smoking or at least to cut down on his smoking.

      The United States’ expert, Dr. Johnson, testified similarly to Dr. Preston. He

opined that the standard of care for a primary care physician was focused on

prevention, identifying a patient’s risk factors and attempting to modify them. His

calculations put Mr. Hohenberger in the intermediate range. Treatment for

asymptomatic patients, whether low, intermediate, or high risk, was to modify risk

factors. Dr. Johnson considered Mr. Hohenberger to be asymptomatic for coronary

artery disease because his symptoms were not characteristic of coronary artery

disease. Accordingly, Dr. Johnson opined that Dr. Preston met the standard of care.

      In contrast, Mrs. Hohenberger’s expert, Dr. Jones, opined that

Mr. Hohenberger’s complaints were symptoms of coronary artery disease. He

therefore did not consider Mr. Hohenberger to be an asymptomatic patient. In light

of Mr. Hohenberger’s age, his status as a smoker, and his medical history, Dr. Jones

testified that the standard of care required more aggressive evaluation for cardiac

disease. At the least, Dr. Preston should have ordered an exercise stress test. Then,

                                           4
depending on results, the initial test could be followed by other treatments such as an

angiogram. When questioned about persons considered to be an intermediate risk,

Dr. Jones reaffirmed that the appropriate treatment was an exercise stress test. He

further opined that had Dr. Preston ordered the additional testing, Mr. Hohenberger

probably would have lived longer.

      The district court found in favor of the United States. It credited

Dr. Johnson’s and Dr. Preston’s opinions over Dr. Jones’s opinion, finding that

Mr. Hohenberger’s complaints were not symptoms of coronary artery disease.

Having found that Mr. Hohenberger was asymptomatic, it further found that the

applicable standard of care was for Dr. Preston to identify risk factors and attempt to

modify them, which he did. It concluded that Mrs. Hohenberger had failed to

demonstrate by a preponderance of the evidence that Dr. Preston breached the

standard of care by not performing further testing for and treatment of coronary

artery disease.

                                    DISCUSSION

I.    Summary Judgment

      Mrs. Hohenberger first argues that the district court erred in denying her

pre-trial motion for summary judgment. She acknowledges that Dr. Jones and

Dr. Johnson offered different opinions regarding the standard of care. She argues,

however, that summary judgment was appropriate because (1) Dr. Johnson’s opinion

did not sufficiently oppose Dr. Jones’s opinion at the time of the motion’s filing, and

(2) Dr. Johnson’s opinion was not supported by the undisputed facts. In response,

                                           5
the United States points to the rule that “the denial of a motion for summary

judgment is not reviewable on an appeal following the entry of final judgment after a

trial where the district court’s decision on the motion was based on its determination

that there were genuine issues of material fact in dispute.” Stump v. Gates, 211 F.3d

527, 532 (10th Cir. 2000); see also Whalen v. Unit Rig, Inc., 974 F.2d 1248, 1251

(10th Cir. 1992) (“[S]ummary judgment was not intended to be a bomb planted

within the litigation at its early stages and exploded on appeal.” (internal quotation

marks omitted)).

      The district court denied summary judgment because it found the existence of

a factual dispute:

              I cannot find, as a matter of law, that . . . there are no facts that the
      defendant could not offer at trial that would support the defendant’s
      position. I mean, this is fundamentally a dispute between experts, and,
      folks, you might as well just accept that reality. Your expert says A and
      their expert says B, that’s what experts do. But fundamentally, since I have
      to draw all inferences in favor of the non-moving party, since I cannot draw
      any conclusions with respect to credibility, I do not see how, in the context
      of this motion, I can find that one expert is right and the other expert is
      wrong.
Aplt. App., Vol. 3 at 471-72. Mrs. Hohenberger attempts to frame her challenges as

involving questions of law, but as the district court recognized, this case

fundamentally turned on the facts. We therefore agree with the United States that the

summary judgment decision is not reviewable on appeal.

II.   Exclusion of Testimony

      Mrs. Hohenberger next argues that the district court erred in granting the

government’s pre-trial motion to preclude testimony about Dr. Ono’s performance.

                                             6
The government filed that motion after Mrs. Hohenberger moved for summary

judgment on liability, arguing that both Dr. Preston and Dr. Ono were negligent.

Concluding that the complaint pleaded only a claim based on Dr. Preston’s

negligence, the district court held that evidence about another doctor’s performance

was not relevant to the case, see Fed. R. Evid. 401, and would not assist the court in

deciding the issues before it, see id. 702(a). “The district court’s decision to admit or

exclude evidence generally, including expert testimony, is typically reviewed under

an abuse of discretion standard.” Ralston v. Smith & Nephew Richards, Inc.,

275 F.3d 965, 968 (10th Cir. 2001) (Rule 702); see also Tanberg v. Sholtis, 401 F.3d

1151, 1162 (10th Cir. 2005) (Rule 401).1 Under this standard, “[a] trial court’s

decision will not be disturbed unless this Court has a definite and firm conviction that

the trial court has made a clear error of judgment or exceeded the bounds of

permissible choice in the circumstances.” Ralston, 275 F.3d at 968-69 (brackets and

internal quotation marks omitted).

      We are not persuaded that the district court abused its discretion in excluding

testimony about Dr. Ono’s performance. The record is clear that Mrs. Hohenberger

was focused on Dr. Preston’s performance when she initiated her case. Her

      1
        The parties disagree on the appropriate standard of review for this issue. We
reject both parties’ proffered standards. Mrs. Hohenberger approaches the issue as
one of pleading, which would involve de novo review. Her discussion of Fed. R.
Civ. P. 12(b)(6) is misplaced, however, because the district court relied on Fed. R.
Evid. 401 and 702. In contrast, the United States urges plain error review because
Mrs. Hohenberger did not make an offer of proof. See Fed. R. Evid. 103(a)(2). But
we agree with Mrs. Hohenberger that the substance of Dr. Jones’s testimony
regarding Dr. Ono’s performance “was apparent from the context,” as allowed by
Rule 103(a)(2).
                                            7
administrative claim names as witnesses only Mrs. Hohenberger and Dr. Preston.

The complaint names as defendants the United States and Dr. Preston, and identifies

only Dr. Preston by name as a negligent actor.2 Further, in her initial discovery

responses, Mrs. Hohenberger failed to identify Dr. Ono as a medical practitioner that

allegedly was negligent. Apparently Dr. Ono came to Mrs. Hohenberger’s attention

during discovery. But Mrs. Hohenberger did not supplement her initial discovery

responses or her initial expert report until after she filed her motion for summary

judgment, and she never moved to amend her complaint to discuss Dr. Ono as well as

Dr. Preston.

      Mrs. Hohenberger points to allegations in the complaint referring to “[t]he

government,” “[t]he employees of the VA who treated Mr. Hohenberger,” and “[t]he

VA and its employees,” which would encompass Dr. Ono as well as Dr. Preston.

Aplt. Br. at 21-22 (internal quotation marks omitted). This general language,

however, must be read in context with the remainder of the complaint and in light of

other events in the case (such as Mrs. Hohenberger’s initial disclosures and the

United States’ scope-of-employment certification, which was limited to Dr. Preston).

In the circumstances, these general references do not demonstrate that the district

court abused its discretion in concluding that Mrs. Hohenberger had framed her case




      2
        Mrs. Hohenberger dismissed Dr. Preston as a defendant after the
United States certified that he was acting within the scope of his employment. The
United States is the only proper defendant in an FTCA case. See Smith v.
United States, 561 F.3d 1090, 1099 (10th Cir. 2009).
                                           8
as focusing on Dr. Preston’s performance, and therefore Dr. Ono’s performance was

not relevant to the issues before the court.

III.   Verdict for the United States

       Finally, Mrs. Hohenberger challenges the district court’s verdict in favor of the

United States. When the district court has conducted a bench trial, we review

conclusions of law de novo and findings of fact for clear error. See United States v.

Estate of St. Clair, 819 F.3d 1254, 1264 (10th Cir. 2016). “A finding is clearly

erroneous when the reviewing court has a definite and firm conviction that it is

mistaken, even though there may be some evidence to support it.” Id. (internal

quotation marks omitted).

       Mrs. Hohenberger takes issue with the district court’s evaluation of Dr. Jones’s

testimony, arguing that the court “was clearly erroneous when [it] held that

Dr. Jones’ opinion was not supported by the medical literature and the [United States

Preventive Services Task Force].” Aplt. Br. at 28. But that is not what the district

court stated. In evaluating the witnesses’ testimony, it stated that “Dr. Jones’s

opinions are not as consistent with the [United States Preventive Services Task

Force] and medical literature as are the opinions of Dr. Preston and Dr. Johnson.”

Aplt. App., Vol. 2 at 457 (emphasis added). Mrs. Hohenberger fails to show that the

district court’s actual finding is clearly erroneous.3 Further, the district court gave

other reasons for not crediting Dr. Jones’s testimony, including that his opinions


       3
        We decline Mrs. Hohenberger’s invitation to take judicial notice of materials
that were not introduced in the district court.
                                               9
were based on hindsight and on a number of symptoms that were not present in the

record, and that he was not aware of all of Mr. Hohenberger’s medical conditions.

Mrs. Hohenberger does not challenge these other reasons.

       Mrs. Hohenberger also asserts that “the record is ripe with evidence that

Mr. Hohenberger suffered cardiac symptoms.” Aplt. Br. at 29. But whether his

complaints were symptoms of coronary artery disease or of other conditions was a

question for trial, and the district court found that the symptoms were not symptoms

of coronary artery disease. Mrs. Hohenberger’s adamant belief to the contrary does

not establish that the district court’s finding was clear error.

                                     CONCLUSION

       The judgment of the district court is affirmed. Mrs. Hohenberger’s unopposed

Renewed Motion to Seal Documents is granted.4 Mrs. Hohenberger’s opposed

Motion to Supplement the Record is denied. The court did not consider the material

contained in the proposed supplemental record.


                                             Entered for the Court


                                             Monroe G. McKay
                                             Circuit Judge




       4
      At the court’s order, Mrs. Hohenberger filed a redacted version of
Appendix Volume 5, which is publicly accessible. The originally filed, unredacted
Appendix Volume 5 shall remain sealed.
                                            10
