554 F2d 708 Newberry v. United States

554 F.2d 708

Thomas D. NEWBERRY et al., Plaintiffs-Appellants,
UNITED STATES of America, Defendant-Appellee.

No. 76-4061

Summary Calendar.*
United States Court of Appeals,
Fifth Circuit.

June 22, 1977.

George M. Papale, Gretna, La., for plaintiffs-appellants.

Michaelle F. Pitard, Asst. U. S. Atty., Gerald J. Gallinghouse, U. S. Atty., Mary W. Cazalas, Asst. U. S. Atty., New Orleans, La., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before THORNBERRY, RONEY and HILL, Circuit Judges.


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This malpractice claim arose under the Federal Tort Claims Act, 28 U.S.C. §§ 2674 et seq. (1970), and alleges improper prescription of birth control pills resulting in circulatory disorders. Judge Christenberry of the Eastern District of Louisiana heard the case, but he passed away before he could deliver decision. Decision was rendered by Judge Schwartz on the basis of the transcript and record. The district court held that there was insufficient evidence of malpractice, and of causation, to sustain plaintiffs' claim.


We note initially that even though the deciding judge had not personally heard the testimony delivered, we employ the clearly erroneous standard of review. See United States v. Ironworkers Local 86, 443 F.2d 544 (9 Cir.), cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971); Summers v. Watkins Motor Lines, 323 F.2d 120 (4 Cir. 1963).


After carefully considering the voluminous record and transcript, we hold that the district court's findings were not clearly erroneous.


Accordingly, the judgment of the district court is AFFIRMED.


Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I