                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 01 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



SUSANNE EDGMON and GARRETT                       No. 10-35538
EDGMON,
                                                 D.C. Nos.    3:07-cv-00154-JWS
              Plaintiffs - Appellants,                        3:08-cv-00035-JWS

  v.
                                                 MEMORANDUM *
UNITED STATES OF AMERICA,

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Alaska
                    John W. Sedwick, District Judge, Presiding

                        Argued and Submitted July 29, 2011
                                Anchorage, Alaska

Before: B. FLETCHER, KLEINFELD, and CALLAHAN, Circuit Judges.

       Susanne Edgmon and her husband Garrett Edgmon appeal from the district

court’s judgment following a bench trial in favor of the government in this medical

malpractice action. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we

affirm.


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      After Susanne was diagnosed with and treated for ovarian cancer, the

Edgmons brought suit under Alaska law against the government pursuant to the

Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674.1 The Edgmons contended

that doctors at Kanakanak Hospital (“Kanakanak”) in Dillingham, Alaska,

negligently failed to diagnose Susanne’s ovarian cancer from at least October 2002

until January 2003, when she was diagnosed with ovarian cancer at a hospital in

Anchorage. They claim they incurred various damages as a result of the allegedly

late diagnosis. The district court determined that under the applicable Alaska

Statute, AS 09.55.540, the Edgmons had the burden to show that Kanakanak’s

doctors breached the applicable standard of care and that this breach was the

proximate cause of their injuries. Following a bench trial, the district court

concluded that the doctors at Kanakanak breached the applicable standard of care

by failing to perform an annual exam on Susanne consisting of (1) a pelvic exam;

(2) a Ca-125 blood test; and (3) a pelvic ultrasound in either December 2001 or

October 2002, but also found that the Edgmons had not shown by a preponderance

of the evidence that those tests would have detected Susanne’s ovarian cancer. In

addition, the district court rejected the Edgmons’ expert’s contention that



      1
             The parties are familiar with the facts of this case and we repeat them
here only as necessary.

                                          -2-
Susanne’s ovarian cancer would have been detected had the doctors at Kanakanak

referred her to a facility that had the equipment and capability to conduct a

computerized tomography scan (“CT scan”). Instead the district court accepted the

government’s experts’ contentions that a CT scan would not necessarily have

detected the cancer. Because the Edgmons had not shown that the tests would

have resulted in an earlier cancer diagnosis, the court concluded that they had

failed to prove that Kanakanak’s breach caused them any damages.

      On appeal, the Edgmons contend that the district court erred: (1) by failing

to find that had the doctors at Kanakanak performed the three annual exam tests or

a CT scan at least in October 2002, Susanne’s ovarian cancer would have been

diagnosed earlier; and (2) assuming that the district court erred in its first

conclusion, then it also erred by failing to award the Edgmons damages.

      The district court’s factual determinations are reviewed for clear error. Fed.

R. Civ. P. 52(a)(6); Yako v. United States, 891 F.2d 738, 745 (9th Cir. 1989). A

finding is clearly erroneous if the reviewing court, after reviewing “the entire

record, is left with a definite and firm conviction that a mistake has been made.”

Beech Aircraft Corp. v. United States, 51 F.3d 834, 838 (9th Cir. 1995). However,

“[a]n appellate court must be especially reluctant to set aside a finding based on the

trial judge’s evaluation of conflicting lay or expert oral testimony.” Id. (citations


                                           -3-
omitted). We are bound by our standard of review. Under that standard, we

cannot say that the district court clearly erred in its findings of fact or conclusions

of law. Fed. R. Civ. P. 52(a)(6); Yako, 891 F.2d at 745.

      The Edgmons contend that the district court should have given more weight

to their evidence, particularly their expert’s proffered testimony. Here, the

Edgmons’ expert was an internist with no specialized training in oncology. The

government’s experts were both gynecologic-oncologists. While the Edgmon’s

expert testified that some of Susanne’s medical issues in October of 2002 were

symptoms of ovarian cancer and that a CT scan administered at that time would

have disclosed the cancer, the government’s experts reached the opposite

conclusion regarding both the symptoms and the CT scan. Where the Edgmons’

expert’s testimony regarding ovarian cancer symptoms differed from the

government’s experts’ testimony, the district court accepted the government’s

experts’ testimony.

      The district court did not clearly err in giving greater weight to the

government’s experts’ opinions. See Beech Aircraft Corp., 51 F.3d at 838. Nor do

we find any clear error in the weight given by the district court to any of the other

evidence. Because the Edgmons have failed to show that the district court clearly

erred in finding that Susanne’s cancer would not have been detected had the annual


                                           -4-
exam tests or the CT scan been administered in 2002, it follows that they cannot

show damages from Kanakanak’s negligence as the statutory proximate cause

element is missing. See AS 09.55.540(a)(3) (“as a proximate result of . . . the

failure to exercise this degree of care the plaintiff suffered injuries that would not

otherwise have been incurred”).

AFFIRMED.




                                           -5-
