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94 F3d 652 Merly v. United States

94 F.3d 652

Eleanor MERLY, as mother and Natural Guardian of Thomas A.
Merly, Jr., Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.

No. 95-35343.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 5, 1996.*
Decided Aug. 9, 1996.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: GOODWIN, BRUNETTI, and KOZINSKI, Circuit Judges.

1

MEMORANDUM**

2

Plaintiff Eleanor Merly appeals the decision of the district court denying her claim, under the Federal Tort Claims Act, for medical malpractice which she alleged caused her son's cerebral palsy.

3

We review for clear error the district court's factual determinations in a Federal Tort Claims Act action. Henderson v. United States, 846 F.2d 1233, 1234 (9th Cir.1988). The same standard applies to findings of proximate causation. Bunting v. United States, 884 F.2d 1143, 1145 (9th Cir.1989).

4

This case was essentially a battle of the experts: each side presented its own experts to advocate its theory of how the Merly child developed cerebral palsy. After reviewing the testimony given during the bench trial1, Judge Sedwick concluded that: (1) because the defendant's expert was more credible and more qualified, the plaintiff did not establish by a preponderance of the evidence that her son's cerebral palsy was caused by the negligent failure to treat her abruptio placenta during childbirth, and (2) because the plaintiff did not file her suit within two years of discovering sufficient facts to notify her of her son's injury and its cause, the statute of limitations barred the suit.

5

We find no fault with the district court's Findings of Fact and Conclusions of Law. We are in no position to substitute our own judgment for the judgment of Judge Sedwick. There was no clear error in this case. Therefore, we must affirm the decision of the district court.

6

We do not need to address the other issues raised on appeal.

7

AFFIRMED.

*

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed.R.App.P. 34(a); Ninth Circuit Rule 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

1

Judge Sedwick was substituted for Judge Fitzgerald after the testimony was given during the trial. Judge Sedwick, after consulting with Judge Fitzgerald and reviewing the transcripts, issued the Findings of Fact and Conclusions of Law