                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-1439


ROMAN SZYJKA, Individually;      ROMAN   AND    PAULA     SZYJKA,   As
Husband and Wife,

                Plaintiffs - Appellants,

          v.

PETER VANDERMEER, M.D.; ADVANCED RADIOLOGY, P.A.; BALTIMORE
WASHINGTON MEDICAL CENTER, INC.,

                Defendants - Appellees,

          and

MIB PARTNERSHIP, LLP,

                Defendant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:12-cv-02834-RDB)


Submitted:   April 16, 2015                    Decided:    April 28, 2015


Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


James O’C Gentry, Emily C. Malarkey, SALSBURY, CLEMENTS, BEKMAN,
MARDER & ADKINS, LLC, Baltimore, Maryland, for Appellants.
Andrew E. Vernick, Matthew J. Chalker, VERNICK & ASSOCIATES,
LLC, Annapolis, Maryland; John T. Sly, Nicole M. Deford, WARANCH
& BROWN, LLC, Lutherville, Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       Appellants       Roman      Szyjka     and       Paula      Szyjka    brought       this

medical-malpractice           action       against      Dr.     Peter     Vandermeer        and

others,       alleging      that     Dr.     Vandermeer         improperly        failed     to

identify an abnormality in Mr. Szyjka’s brain.                               A jury trial

resulted in a defense verdict.                We affirm.

       Appellants first challenge the district court’s ruling that

one of their experts, Dr. Joseph Landolfi, a neurologist and

neuro-oncologist, could not testify regarding the standard of

care    for     radiologists.          The    district          court     found     that   Dr.

Landolfi’s testimony was barred by Md. Code Ann., Cts. & Jud.

Proc. § 3-2A-02(c)(2)(ii) (2013), and lacked foundation.                                    We

review a district court’s decision to exclude expert testimony

for abuse of discretion.              United States v. Garcia, 752 F.3d 382,

390    (4th    Cir.    2014).        “The    proponent        of    the     testimony      must

establish       its     admissibility        by     a    preponderance         of     proof.”

Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir.

2001); see Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,

597 (1993) (noting that “[Fed. R. Evid.] 702 . . . assign[s] to

the trial judge the task of ensuring that an expert’s testimony

both rests on a reliable foundation and is relevant to the task

at    hand”).         Our   review    of    the     joint     appendix       filed    by    the

parties   on     appeal      leaves    us    without      doubt      that     the    district

court did not abuse its discretion in finding that the Szyjkas

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failed to establish an adequate foundation for admitting Dr.

Landolfi’s testimony regarding the standard of care. ∗

       Appellants also challenge the district court’s instruction

to the jury regarding its review of a doctor’s conduct.                             See

East v. United States, 745 F. Supp. 1142, 1149 (D. Md. 1990).

“Although we review a district court’s refusal to give a jury

instruction for abuse of discretion, we conduct a de novo review

of any claim that jury instructions incorrectly stated the law.”

United States v. Mouzone, 687 F.3d 207, 217 (4th Cir. 2012)

(citations omitted).           “So long as the charge is accurate on the

law    and   does    not    confuse   or       mislead   the   jury,     it    is    not

erroneous.”         Hardin v. Ski Venture, Inc., 50 F.3d 1291, 1294

(4th Cir. 1995).           “While the content of jury instructions in a

diversity case is a matter of state law, the form of those

instructions is governed by federal law.”                      Id. at 1293.           We

conclude     that,    taking    the   jury     instructions     as   a   whole,      the

district court’s nonpattern instruction was permissible as it

correctly stated Maryland law and did not confuse or mislead the

jury.      See Hetrick v. Weimer, 508 A.2d 522, 529 (Md. Ct. Spec.

App.       1986)     (approving       jury       instruction         stating        that

       ∗
       Because Dr. Landolfi’s testimony regarding the standard of
care lacked adequate foundation, we do not reach the question of
whether Md. Code Ann., Cts. & Jud. Proc. § 3-2A-02(c)(2)(ii)
also bars this testimony. See Creekmore v. Maryview Hosp., 662
F.3d 686, 690 (4th Cir. 2011).



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reasonableness        of   doctor’s    actions    is   determined    based    on

“circumstances as they then existed at the time of the treatment

. . . rather than [on] hindsight”), rev’d on other grounds, 525

A.2d 643 (Md. 1987).

      Accordingly, we affirm the judgment of the district court.

We   dispense   with       oral   argument   because   the   facts   and   legal

contentions     are    adequately     presented   in   the   materials     before

this court and argument would not aid the decisional process.


                                                                      AFFIRMED




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