NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________
No. 21-1094 ________________
JOSEPH NADEL, Appellant
v.
UNITED STATES OF AMERICA ________________
Appeal from the United States District Court for the District of Delaware (D.C. Civil Action No. 1-19-cv-01099) Circuit Judge: Honorable Stephanos Bibas * ________________
Submitted under Third Circuit LAR 34.1(a) On November 19, 2021
Before: AMBRO, JORDAN and ROTH, Circuit Judges
(Opinion filed: February 9, 2022)
________________
OPINION ** ________________
* The Honorable Stephanos Bibas, United States Circuit Judge of the United States Court of Appeals for the Third Circuit, sitting by designation pursuant to 28 U.S.C. § 291(b). ** This disposition is not an opinion of the full Court and for I.O.P. 5.7 does not constitute binding precedent. ROTH, Circuit Judge
Joseph Nadel sued the United States for negligence, claiming he was injured
during a medical procedure at a veterans’ hospital. Delaware law, which applies in this
action under the Federal Tort Claims Act, 1 requires the plaintiff in a medical malpractice
suit to produce credible expert testimony specifying how the defendant deviated from the
applicable standard of care. Nadel’s expert opined that the staff at the veterans’ hospital
misused a medical device. However, the expert based his opinion on a misunderstanding
of another witness’ testimony. Accordingly, the District Court granted summary
judgment to the United States. We will affirm.
I.
Nadel went to a hospital operated by the United States Department of Veterans
Affairs to undergo an esophagogastroduodenoscopy. During the procedure, a doctor
found two areas of angioectasia, malformed blood vessels, in Nadel’s duodenum. The
doctor cauterized the areas of angioectasia with an instrument called a Gold Probe,
manufactured by Boston Scientific. The Gold Probe was powered by an electrosurgery
machine, manufactured by Erbe. After the surgery, staff at the veterans’ hospital
discovered that Nadel’s duodenum was perforated. The veterans’ hospital transferred
Nadel to another hospital, where doctors performed emergency surgery to patch his
duodenum and remove his gallbladder.
1 28 U.S.C. §§ 1346, 2671–2680. 2 Nadel sued the United States under the Federal Tort Claims Act. He claims the
staff at the veterans’ hospital used the wrong settings on the Erbe machine, which caused
it to power the Gold Probe with too much voltage, and in turn caused the Gold Probe to
perforate Nadel’s duodenum.
Nadel’s sole expert witness was Dr. Todd D. Eisner, who authored two reports.
Each report was one-page long. In his first report, Eisner said the Erbe machine produces
550V when the machine is on its “forced coag” setting, as the surgical progress notes
indicate that it was during Nadel’s procedure. 2 Eisner also said, “[a]ccording to Boston
Scientific, the maximum voltage for the Gold Probe is 350V.” 3 Eisner opined that
because the voltage produced by the Erbe machine, when set to forced coag, exceeds the
maximum voltage of the Gold Probe, the staff at the veterans’ hospital breached the
standard of care by setting the Erbe machine to forced coag while using the Gold Probe
and that this breach caused the perforation of Nadel’s duodenum.
Eisner prepared a second report after reviewing the deposition transcript of John
Day, a vice president at Erbe, USA. Eisner’s second report differs from his first report in
three important ways. First, Eisner said that the maximum voltage for the Gold Probe is
250V—not 350V as he said in his first report. Second, Eisner said that the Erbe machine
was probably not used on the forced coag setting. Indeed, Eisner acknowledged that
“Mr. Day testified that he is ‘not sure it[ is] even possible to use “forced coag” with a
2 J.A. at 44. 3 Id. 3 Gold Probe.’” 4 Third, Eisner said that the Erbe machine produced 460V during the
procedure, not 550V as he said in his first report. Eisner opined that the staff at the
veterans’ hospital breached the standard of care by using the Erbe machine at a setting
that powered the Gold Probe with 460V, exceeding the Gold Probe’s maximum voltage
of 250V.
In his second report, Eisner makes clear that his understanding of the voltage
produced by the Erbe machine was based entirely on an email from Day and Day’s
deposition testimony. In Eisner’s deposition, he confirmed that he had no basis, other
than Day’s email and testimony, for his belief that the Erbe machine produced 460V
during Nadel’s procedure.
Contrary to Eisner’s understanding, Day did not testify or write in the email that
the Erbe machine produced 460V during Nadel’s procedure. Instead, Day testified and
wrote that, at a certain setting, the Erbe machine produces 460V when tested into a 200-
ohm load resistor. Yet, as Day explained, the voltage produced by the Erbe machine
varies based on the resistance it meets. Day testified he does not know the resistance of
the human duodenum, whether it is 200 ohms or something else, so he cannot know,
without further testing, the voltage actually produced by the Erbe machine during Nadel’s
procedure.
The United States moved for summary judgment. The District Court granted it.
Nadel appealed.
4 Id. at 73. 4 II.
The District Court had jurisdiction under 28 U.S.C. § 1346(b). We have appellate
jurisdiction under 28 U.S.C. § 1291.
“We review the District Court’s grant of summary judgment de novo.” 5 Summary
judgment is appropriate when a party shows “there is no genuine dispute as to any
material fact” and it “is entitled to judgment as a matter of law.” 6 We view all facts “in
the light most favorable to the non-moving party” and draw “all reasonable inferences . . .
in that party’s favor.” 7
III.
Under the Federal Tort Claims Act, the United States is liable for the negligence
of its employees when they are acting within the scope of their employment. 8 Liability is
based on the law of the state where the alleged negligence occurred. 9 Thus, Delaware
law applies in this action.
Delaware law requires a party alleging medical malpractice to “produce expert
medical testimony that specifies (1) the applicable standard of care, (2) the alleged
deviation from that standard, and (3) the causal link between the deviation and the
alleged injury.” 10 A plaintiff is “not required to provide uncontradicted evidence of the
5 Sapa Extrusions, Inc. v. Liberty Mut. Ins. Co., 939 F.3d 243, 249 (3d Cir. 2019). 6 FED. R. CIV. P. 56(a). 7 Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 288 (3d Cir. 2018) (internal quotation marks omitted). 8 28 U.S.C. § 1346(b)(1). 9 See Molzof v.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________
No. 21-1094 ________________
JOSEPH NADEL, Appellant
v.
UNITED STATES OF AMERICA ________________
Appeal from the United States District Court for the District of Delaware (D.C. Civil Action No. 1-19-cv-01099) Circuit Judge: Honorable Stephanos Bibas * ________________
Submitted under Third Circuit LAR 34.1(a) On November 19, 2021
Before: AMBRO, JORDAN and ROTH, Circuit Judges
(Opinion filed: February 9, 2022)
________________
OPINION ** ________________
* The Honorable Stephanos Bibas, United States Circuit Judge of the United States Court of Appeals for the Third Circuit, sitting by designation pursuant to 28 U.S.C. § 291(b). ** This disposition is not an opinion of the full Court and for I.O.P. 5.7 does not constitute binding precedent. ROTH, Circuit Judge
Joseph Nadel sued the United States for negligence, claiming he was injured
during a medical procedure at a veterans’ hospital. Delaware law, which applies in this
action under the Federal Tort Claims Act, 1 requires the plaintiff in a medical malpractice
suit to produce credible expert testimony specifying how the defendant deviated from the
applicable standard of care. Nadel’s expert opined that the staff at the veterans’ hospital
misused a medical device. However, the expert based his opinion on a misunderstanding
of another witness’ testimony. Accordingly, the District Court granted summary
judgment to the United States. We will affirm.
I.
Nadel went to a hospital operated by the United States Department of Veterans
Affairs to undergo an esophagogastroduodenoscopy. During the procedure, a doctor
found two areas of angioectasia, malformed blood vessels, in Nadel’s duodenum. The
doctor cauterized the areas of angioectasia with an instrument called a Gold Probe,
manufactured by Boston Scientific. The Gold Probe was powered by an electrosurgery
machine, manufactured by Erbe. After the surgery, staff at the veterans’ hospital
discovered that Nadel’s duodenum was perforated. The veterans’ hospital transferred
Nadel to another hospital, where doctors performed emergency surgery to patch his
duodenum and remove his gallbladder.
1 28 U.S.C. §§ 1346, 2671–2680. 2 Nadel sued the United States under the Federal Tort Claims Act. He claims the
staff at the veterans’ hospital used the wrong settings on the Erbe machine, which caused
it to power the Gold Probe with too much voltage, and in turn caused the Gold Probe to
perforate Nadel’s duodenum.
Nadel’s sole expert witness was Dr. Todd D. Eisner, who authored two reports.
Each report was one-page long. In his first report, Eisner said the Erbe machine produces
550V when the machine is on its “forced coag” setting, as the surgical progress notes
indicate that it was during Nadel’s procedure. 2 Eisner also said, “[a]ccording to Boston
Scientific, the maximum voltage for the Gold Probe is 350V.” 3 Eisner opined that
because the voltage produced by the Erbe machine, when set to forced coag, exceeds the
maximum voltage of the Gold Probe, the staff at the veterans’ hospital breached the
standard of care by setting the Erbe machine to forced coag while using the Gold Probe
and that this breach caused the perforation of Nadel’s duodenum.
Eisner prepared a second report after reviewing the deposition transcript of John
Day, a vice president at Erbe, USA. Eisner’s second report differs from his first report in
three important ways. First, Eisner said that the maximum voltage for the Gold Probe is
250V—not 350V as he said in his first report. Second, Eisner said that the Erbe machine
was probably not used on the forced coag setting. Indeed, Eisner acknowledged that
“Mr. Day testified that he is ‘not sure it[ is] even possible to use “forced coag” with a
2 J.A. at 44. 3 Id. 3 Gold Probe.’” 4 Third, Eisner said that the Erbe machine produced 460V during the
procedure, not 550V as he said in his first report. Eisner opined that the staff at the
veterans’ hospital breached the standard of care by using the Erbe machine at a setting
that powered the Gold Probe with 460V, exceeding the Gold Probe’s maximum voltage
of 250V.
In his second report, Eisner makes clear that his understanding of the voltage
produced by the Erbe machine was based entirely on an email from Day and Day’s
deposition testimony. In Eisner’s deposition, he confirmed that he had no basis, other
than Day’s email and testimony, for his belief that the Erbe machine produced 460V
during Nadel’s procedure.
Contrary to Eisner’s understanding, Day did not testify or write in the email that
the Erbe machine produced 460V during Nadel’s procedure. Instead, Day testified and
wrote that, at a certain setting, the Erbe machine produces 460V when tested into a 200-
ohm load resistor. Yet, as Day explained, the voltage produced by the Erbe machine
varies based on the resistance it meets. Day testified he does not know the resistance of
the human duodenum, whether it is 200 ohms or something else, so he cannot know,
without further testing, the voltage actually produced by the Erbe machine during Nadel’s
procedure.
The United States moved for summary judgment. The District Court granted it.
Nadel appealed.
4 Id. at 73. 4 II.
The District Court had jurisdiction under 28 U.S.C. § 1346(b). We have appellate
jurisdiction under 28 U.S.C. § 1291.
“We review the District Court’s grant of summary judgment de novo.” 5 Summary
judgment is appropriate when a party shows “there is no genuine dispute as to any
material fact” and it “is entitled to judgment as a matter of law.” 6 We view all facts “in
the light most favorable to the non-moving party” and draw “all reasonable inferences . . .
in that party’s favor.” 7
III.
Under the Federal Tort Claims Act, the United States is liable for the negligence
of its employees when they are acting within the scope of their employment. 8 Liability is
based on the law of the state where the alleged negligence occurred. 9 Thus, Delaware
law applies in this action.
Delaware law requires a party alleging medical malpractice to “produce expert
medical testimony that specifies (1) the applicable standard of care, (2) the alleged
deviation from that standard, and (3) the causal link between the deviation and the
alleged injury.” 10 A plaintiff is “not required to provide uncontradicted evidence of the
5 Sapa Extrusions, Inc. v. Liberty Mut. Ins. Co., 939 F.3d 243, 249 (3d Cir. 2019). 6 FED. R. CIV. P. 56(a). 7 Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 288 (3d Cir. 2018) (internal quotation marks omitted). 8 28 U.S.C. § 1346(b)(1). 9 See Molzof v. United States, 502 U.S. 301, 305 (1992) (“[T]he extent of the United States’ liability under the FTCA is generally determined by reference to state law.”). 10 Green v. Weiner, 766 A.2d 492, 494–95 (Del. 2001) (citing 18 Del. C. § 6853). 5 elements of [his] negligence claim,” but the plaintiff must “provide credible evidence of
each of these elements from which a reasonable jury could find in [his] favor.” 11
Here, the District Court correctly concluded Eisner did not provide credible
evidence of a deviation from the standard of care. Eisner’s opinion rests on the premise
that the Erbe machine produced 460V during Nadel’s procedure—exceeding the Gold
Probe’s maximum voltage of 250V. Yet Eisner conceded his only basis for concluding
the Erbe machine produced 460V during Nadel’s actual procedure was Day’s testimony
and email. Because Day did not testify or write in the email that the Erbe machine
produced 460V during Nadel’s actual procedure but merely spoke of the general capacity
of the Erbe machine, Eisner’s opinion does not meet the required standard.
Nadel argues the District Court impermissibly weighed evidence at the summary
judgment stage and, in doing so, improperly concluded Eisner’s opinion was speculative.
To be sure, any contention that an expert is speculating goes “to the weight of the
evidence and thus presents a jury question.” 12 However, here, the District Court neither
weighed evidence nor concluded Eisner’s opinion was speculative. Instead, the District
Court focused on the inquiry mandated by Delaware law: Determining whether Eisner’s
opinion met the standard required by Delaware law. As explained, Eisner’s opinion did
not meet that standard because it was based on a misunderstanding of Day’s email and
11 Id. at 495. 12 Id. at 496. 6 testimony. A reasonable jury could not find in Nadel’s favor, so summary judgment was
appropriate. 13
IV.
Because Nadel failed to provide the required expert evidence of a deviation from
the standard of care, summary judgment in favor of the United States was appropriate.
We will affirm the judgment of the District Court.
13 Separately, Nadel contends the District Court held him to the practically impossible burden of proving the resistance of his duodenum. Not true. There were many ways Nadel could have chosen to support his claim. Nadel could not, however, support his claim by relying on expert evidence that is not credible. Thus, Eisner’s misunderstanding of Day’s email and testimony is fatal to Nadel’s claim. 7