                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 9 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

REBECCA DIKES, Personal Representative          No.    19-35487
For the Estate of Shawn C. Dikes,
                                                D.C. No. 3:17-cv-00573-BR
                Plaintiff-Appellant,

 v.                                             MEMORANDUM*

UNITED STATES OF AMERICA,

                Defendant-Appellee.

                   Appeal from the United States District Court
                            for the District of Oregon
                    Anna J. Brown, District Judge, Presiding

                             Submitted June 3, 2020**
                                Portland, Oregon

Before: BERZON and COLLINS, Circuit Judges, and CHOE-GROVES,*** Judge.

      The surviving spouse and personal representative of the estate of Shawn

Dikes, Plaintiff-Appellant Rebecca Dikes, appeals from the district court’s


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.
judgment entered after a bench trial finding Defendant not liable in this wrongful-

death action brought under the Federal Tort Claims Act (“FTCA”), 28 U.S.C.

§§ 1346, 2671–80. On appeal, Plaintiff cites as error the district court’s evaluation

of causation using both the “but for” and the “substantial factor” standards and its

weighing of the evidence as to the standard of care and causation. Oregon law

governs this FTCA action. Id. §§ 1346(b)(1), 2674. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

      We review the district court’s conclusions of law de novo and its factual

findings for clear error. OneBeacon Ins. Co. v. Haas Indus., Inc., 634 F.3d 1092,

1096 (9th Cir. 2011).

      1. The district court did not prejudicially err in evaluating causation under

both the “but for” and “substantial factor” standards because it held that Plaintiff

failed to satisfy her burden under either standard. Before trial, the district court

confirmed that it would evaluate causation under the “substantial factor” standard,

but after Plaintiff rested, it held a detailed colloquy with the parties concerning

analyzing causation under the “but for” standard. At that colloquy, Plaintiff

restated her objection to the district court “even considering applying a ‘but for’

standard.” Even if we agreed with Plaintiff that only the “substantial factor” test

should have been considered, we perceive no basis for concluding that the district

court’s alternative application of the “but for” test affected the court’s independent


                                           2
application of the “substantial factor” test. Nothing in the record suggests that the

district court misunderstood or misconstrued the “substantial factor” test.

      2. The district court did not clearly err in weighing the evidence as to the

standard of care and causation. The district court found that Plaintiff did not meet

her burden of showing (1) that the cause of Mr. Dikes’ death was the Portland

Veterans Affairs Medical Center’s (“VA”) failure to order specific diagnostic tests

that would have identified an obstructed bile duct or (2) that any failure to treat the

obstructed bile duct breached the standard of care. Defendant’s medical experts,

Drs. Levitsky, Fix, and Jen, opined that Mr. Dikes’ post-transplant medical

treatment at the VA met the standard of care because, based on Mr. Dikes’

condition, it was not prudent to perform further diagnostic testing aimed at

identifying an obstructed bile duct. As to causation, Drs. Levitsky and Fix each

opined that Mr. Dikes likely died of an aggressive form of recurrent hepatitis C,

which likely developed during his critical illness, and not because of an

undiagnosed biliary obstruction. Although Plaintiff’s two medical experts testified

to the contrary, it was not clear error for the district court to credit the opposing

expert analyses as equally weighted. See United States v. Elliott, 322 F.3d 710,

715 (9th Cir. 2003). In short, Plaintiff has failed to show that the district court’s

decision was clearly erroneous, because the stipulated facts, combined with the

evidence adduced at trial—the lab results, diagnostic tests, post-transplant liver


                                            3
biopsies, autopsy report, death certificate, medical expert reports, and testimony

from VA treating physicians and competing medical experts—supported the

district court’s ultimate finding that Plaintiff failed to prove a breach in the

standard of care in a manner that was either a “substantial factor” or the “but for”

cause of Mr. Dikes’ death.

       AFFIRMED.1




1
 Because we uphold the nonliability finding, we do not address Plaintiff’s appeal of the adverse
summary judgment ruling holding applicable Oregon law’s cap on the recovery of noneconomic
damages.

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