Rene Madera-Font v. United States of America

• Court: District Court, D. Arizona
• Decided: May 21, 2026
• Docket: 3:22-cv-08225
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Rene Madera-Font, No. CV-22-08225-PCT-GMS

10 Plaintiff, ORDER

11 v.

12 United States of America,

13 Defendant. 14 15 Pending before the Court is Defendant United States of America’s (the 16 “Government”) Motion for Summary Judgment. (Doc. 52). For the reasons described 17 below, the Government’s motion is denied. 18 BACKGROUND 19 From January 22, 2019 to January 20, 2021, Plaintiff Rene Madera-Font worked as 20 a physician with the Northern Arizona VA Health Care System in Prescott, Arizona (“VA”). 21 (Doc. 53 at 1; Doc. 57 at 2). Plaintiff is a licensed physician and has been board certified 22 in family medicine, emergency medicine, and forensic medicine. (Doc. 53 at 1, 5; Doc. 57 23 at 2). 24 Just before leaving his position at the VA, Plaintiff, who was 70 years old at the 25 time, signed up for an annual employee medical screening which included a prostate 26 specific antigen test (“PSA”), used to detect whether a male may have prostate cancer. 27 (Doc. 58-2 at 28; Doc. 58-3 at 2). Until he underwent this screening, Plaintiff had never 28 had a PSA test. (Doc. 58-2 at 28-29). The test was conducted on January 19, 2021—the 1 day before Plaintiff left his job at the VA—and it revealed an elevated PSA level of 16.9. 2 (Doc. 53 at 1-2; Doc. 53-1 at 6; Doc. 57 at 2-3). PSA levels between 4 and 10 are 3 “suggestive of cancer in males” while levels above 10 are “highly suggestive of prostate 4 cancer.” (Doc. 58-3 at 2). Because the VA sent the lab results to Plaintiff’s VA email 5 address—which he could no longer access—Plaintiff was not timely informed of the 6 elevated result. (Doc. 53 at 2; Doc. 57 at 2). 7 Almost four months later, on May 8, 2021, during a life insurance screening process, 8 Plaintiff underwent a second PSA test, which showed a PSA level of 23.6. (Doc. 53 at 2- 9 3; Doc. 53-1 at 5; Doc. 57 at 3). Prompted by this result, Plaintiff underwent a third test 10 on June 10, 2021, showing a PSA level of 25.8. (Doc. 53 at 3; Doc. 53-3 at 4; Doc. 57 at 11 3). In the following weeks, Plaintiff saw multiple providers for imaging, a biopsy, and 12 other testing. (Doc. 53 at 3-4; Doc. 57 at 3-4). 13 On July 23, 2021, Plaintiff began seeing oncologist Dr. Sandy T. Liu, M.D., at the 14 University of California Los Angeles (“UCLA”) for treatment of his prostate cancer, which 15 now had a PSA level of 31.6. (Doc. 53 at 4; Doc. 57 at 3, 6-7; Doc. 58-10 at 2-6). For 16 radiation therapy, Dr. Liu referred Plaintiff to Dr. Amar U. Kishan, M.D., a radiation 17 oncologist at UCLA, who designed and administered a prolonged course of radiation for 18 Plaintiff. (Doc. 57 at 7-8; Doc. 58-10 at 2-10). 19 On October 20, 2022, Dr. Liu wrote a letter on behalf of Plaintiff, in which she 20 states, among other things, that PSA 21 [l]evels between 10 and 20 have to be regarded with serious concern for malignancy. Further evaluation is mandatory with 22 the urgent goal of defining the malignancy’s presence while still within the prostate gland itself. Any delay increases the 23 probability of evolving metastasis, that is, spread into surrounding tissues. 24 While serious malignancy can exist at only moderate high 25 [PSA] levels even with high-grade tumors, the higher the level the more suspicion it becomes for high-grade, serious, 26 malignant tumors. Delay in evaluation and care of these cancers simply increases the probability of . . . metastasis. 27 Along with metastasis and increase growth in more locations comes higher values of PSA. 28 [Plaintiff’s] best hope for cancer limited to the prostate gland 1 existed while his PSA was at the lower level of 16. That time was also his best hope for resection of the prostate allowing a 2 cure rate of 95%, and quickly return to work. Delayed recognition and management/treatment, as in his case, can 3 exclude resection as a possible treatment and require drug and radiation therapy as his best chance for cure or remission. At 4 that point the cure rate is approximately . . . 20%. . . . 5 . . . [Plaintiff] was not a surgical candidate . . . 6 Consultation with . . . [Dr. Kishan] confirmed that [Plaintiff’s] best chances were with a medical therapy regimen together 7 with radiation therapy. 8 (Doc. 58-12 at 2-3). Dr. Kishan provided a letter on November 3, 2022, with nearly 9 identical language. (Doc. 58-14 at 2-3). 10 On December 12, 2022, Plaintiff brought this lawsuit, alleging that he “has a 11 decreased chance of survival due to the” VA’s failure to timely provide him with his January 12 19, 2021 lab results, including his PSA level. (Doc. 1 at 5). He further alleges that, “[d]ue 13 to the untimely diagnosis, certain treatment options were eliminated which resulted in” a 14 “lost opportunity for successful treatment of the prostate cancer.” (Id.). Plaintiff’s 15 Complaint asserts one count of medical negligence under the Federal Tort Claims Act 16 (“FTCA”), 28 U.S.C. § 2671 et seq. (Id. at 4-6). 17 In addition to producing his letters from Drs. Liu and Kishan, Plaintiff provided his 18 own declaration on April 19, 2023 (the “April 2023 Declaration”) in response to the 19 Government’s Motion to Dismiss, regarding his medical knowledge of the development of 20 his prostate cancer, in which he states that 21 [a]s a physician, [he] understood a PSA of 16.9 . . . is a strong indication [he] had cancer in January of 2021. Likewise, [he] 22 understood that the cancer had grown dramatically from January to June and even further in July of 2021. 23 . . . [He] could have had a resection of [his] prostate in 24 January/February of 2021 with a survival rate of 95%. Delayed recognition and treatment rendered [him] a non-surgical 25 candidate by July of 2021 with only a 20% survival rate. 26 (Doc. 16 at 14; Doc. 58-3 at 3). 27 The Case Management Order (“CMO”) in this matter, issued May 10, 2024, dictates 28 that the Plaintiff’s expert disclosures under Federal Rule of Civil Procedure 26(a)(2)(A)- 1 (C) were due December 13, 2024. (Doc. 36 at 3). The parties’ rebuttal expert disclosures 2 were due February 7, 2025, while fact discovery closed February 28, 2025. (Id. at 2-3). 3 The deadline for expert depositions was April 11, 2025. (Id. at 3). 4 Plaintiff did not disclose any experts. (Doc. 53 at 5). In his second supplemental 5 disclosure, dated September 24, 2024, Plaintiff listed himself and his “medical providers,” 6 including “Medical Oncology providers at UCLA,” as witnesses but did not identify any 7 providers. (Doc. 53-12 at 8-9). He stated that he 8 anticipate[d] the providers listed above to have discoverable information regarding their observations of and conversations 9 with Plaintiff, Plaintiff’s alleged symptoms and injuries, and the treatment they provided to Plaintiff prior to and following 10 the Accident and any recommendations for future treatment, if any, and the basis for the same. 11 12 (Id. at 9). He also produced his medical records from UCLA, where Drs. Liu and Kishan 13 worked. (Id. at 10; Doc. 57 at 6). As relevant here, he further disclosed that he anticipated 14 calling “Medical Experts on Causation,” but did not identify any experts. (Doc. 53-12 at 15 9). 16 During his deposition on October 18, 2024, Plaintiff testified that he “absolutely had 17 to have had” prostate cancer in January 2021 because with a PSA level of 16, he would be 18 “absolutely worried about malignancy.” (Doc. 58-2 at 47). He further opined that he 19 “probably did not” have metastatic cancer at the time because “it’s a matter of probabilities 20 once you get between 10, 15, 16, . . . you’re definitely concerned about significant incite 21 to cancer, and that treatment is different.” (Id.). For a PSA level to “skyrocket up . . . 22 means generally metastatic development.” (Id.). When asked whether “the approximate 23 five-month delay in knowing the January 2021 PSA results impacted [his] prognosis,” he 24 responded with his “opinion [that] it converted [him] from a 90 percent survival rate, 10 25 percent failure rate to the reverse, to a 10 percent survival rate and 90 percent death rate.” 26 (Id. at 47-48). He testified that this change in his prognosis was “by virtue of” the change 27 from “being a candidate for surgical excision and a cure . . . to a different category of 28 treatment altogether.” (Id. at 48). 1 On May 23, 2025, the Government moved for summary judgment on the basis that 2 Plaintiff cannot prove that the VA’s actions caused his injury. (Doc. 52 at 1). Oral argument 3 was held on May 15, 2026. (Doc. 61). 4 DISCUSSION 5 The Government’s Motion for Summary Judgment disputes only one element of 6 Plaintiff’s claim: causation. The central issue between the parties is whether the medical 7 opinions that Plaintiff intends to offer—from himself and his treating physicians, Drs. Liu 8 and Kishan—are sufficient to survive summary judgment. The Government argues that 9 Plaintiff fails to satisfy Arizona’s substantive requirements for expert testimony in medical 10 malpractice cases because (1) Plaintiff failed to disclose any experts under Rule 26 and 11 (2) the expert testimony that Plaintiff seeks to offer is insufficient to establish causation. 12 (Doc. 52 at 7-17; Doc. 59 at 1-9). 13 I. Summary Judgment Legal Standard 14 A court must grant summary judgment “if the movant shows that there is no genuine 15 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 16 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 17 movant bears the initial responsibility of presenting the basis for its motion and identifying 18 those portions of the record which it believes demonstrate the absence of a genuine dispute 19 of material fact. Celotex, 477 U.S. at 323. “Where the non-moving party bears the burden 20 of proof at trial, the moving party need only prove that there is an absence of evidence to 21 support the non-moving party’s case.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 22 (9th Cir. 2010) (citing Celotex, 477 U.S. at 325). In any case, when considering motions 23 for summary judgment, courts should construe the facts in the light most favorable to the 24 non-moving party and draw all reasonable inferences in their favor. Leisek v. Brightwood 25 Corp., 278 F.3d 895, 898 (9th Cir. 2002). 26 If the movant fails to carry its initial burden of production, the nonmovant need not 27 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 28 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 1 to the nonmovant to demonstrate the existence of a material, factual dispute. Anderson v. 2 Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “[T]he threshold inquiry . . . [is] whether 3 there is the need for a trial—whether, in other words, there are any genuine factual issues 4 that properly can be resolved only by a finder of fact because they may reasonably be 5 resolved in favor of either party.” Id. Consequently, “[a] summary judgment motion 6 cannot be defeated by relying solely on conclusory allegations unsupported by factual 7 data.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 8 II. Expert Disclosures 9 A. Legal Standard 10 As explicitly noted in the CMO (Doc. 36 at 3), the Federal Rules of Civil Procedure 11 impose different disclosure requirements based on the type of witness. Fed. R. Civ. P. 12 26(a)(1)-(2). Expert testimony is disclosed under Rule 26(a)(2) and may require an 13 additional written report. Fed. R. Civ. P. 26(a)(2)(B). An exception to the written report 14 requirement exists for treating physicians but only “to the extent that [their] opinions were 15 formed during the course of treatment.” Goodman v. Staples The Office Superstore, LLC, 16 644 F.3d 817, 826 (9th Cir. 2011). A treating physician that forms opinions outside of the 17 course of treatment must provide a complete written report in compliance with Rule 18 26(a)(2)(B). Id. 19 Even when an opinion is formed during the course of treatment, however, treating 20 physicians must still make certain disclosures under Rule 26(a)(2)(C). Merch. v. Corizon 21 Health, Inc., 993 F.3d 733, 739-40 (9th Cir. 2021) (“Nonetheless, disclosures of non- 22 retained, treating physicians must include ‘(i) the subject matter on which the witness is 23 expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a 24 summary of the facts and opinions to which the witness is expected to testify.’” (quoting 25 Fed. R. Civ. P. 26(a)(2)(C))); (Doc. 36 at 3-4 n.2). 26 Improperly disclosed expert evidence, including that under Rule 26(a)(2)(C), may 27 be excluded unless non-disclosure was “substantially justified or harmless.” Merch., 993 28 F.3d at 740. The non-compliant party bears the burden of raising and showing 1 harmlessness. Key v. Qualcomm Inc., 129 F.4th 1129, 1143 (9th Cir. 2025); Yeti by Molly, 2 Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 2001). 3 B. Analysis 1. Plaintiff’s failure to make required expert disclosures violated 4 Rule 26 and the CMO. 5 As an initial matter, Plaintiff never disclosed any causation experts. (See Doc. 53- 6 12 at 9). Rather, he simply indicated that he might call “Medical Experts on Causation” 7 (id.) without identifying any such expert or providing any “summary of the facts and 8 opinions to which the expert will testify” that could “provide fair notice of what the expert 9 will say at trial” as required by the CMO (Doc. 36 at 3) and Rule 26(a)(2)(C). 10 Plaintiff argues that, under Goodman, Drs. Liu and Kishan did not need to be 11 disclosed at all because they were his treating physicians. (Doc. 57 at 9-12). But Goodman 12 provides a partial exception to the written report requirement, not to the disclosure 13 requirement. Merch., 993 F.3d at 739-40. Rule 26(a)(2)(C) still imposes a disclosure 14 requirement for treating physicians offering expert testimony even when their opinions 15 were formed during treatment. Id. Even accepting as true Plaintiff’s claim that Drs. Liu 16 and Kishan formed their causation opinions in the course of his treatment (Doc. 57 at 9- 17 12), Plaintiff was required to disclose their identities and state both the subject matter of 18 their testimony and a summary of the facts and opinions in that testimony. (Doc. 36 at 3); 19 Fed. R. Civ. P. 26(a)(2)(C). He failed to do so. 20 Similarly, assuming that Plaintiff is qualified to offer expert testimony on medical 21 causation for prostate cancer,1 Plaintiff was required to disclose himself as an expert 22 witness under Rule 26(a)(2)(C). Plaintiff did disclose himself as a witness but not as an 23 expert and offered no description or report regarding his anticipated testimony. (Doc. 53- 24

25 1 The Government implies that Plaintiff is not a qualified expert because he does not have expertise in urology or oncology. (See Doc. 52 at 11; Doc. 59 at 9). Plaintiff is a licensed 26 physician and has been board certified in family medicine, emergency medicine, and forensic medicine. (Doc. 53 at 1, 5; Doc. 57 at 2). During his deposition, Plaintiff testified 27 that while he knew of PSA testing, it was “not in [his] professional activity sphere of consciousness” because it is not something “useful . . . in emergency medicine.” (Doc. 58- 28 2 at 47). Because the parties do not provide substantive argument on this point, however, the Court will not address this issue. 1 12 at 8-9). Accordingly, Plaintiff failed to disclose himself as an expert and violated Rule 2 26 and the CMO. 3 2. Plaintiff’s failure to disclose Drs. Liu & Kishan as experts 4 cannot be considered harmless. 5 Plaintiff alternatively argues that any failure to disclose the expert testimony of Drs. 6 Liu and Kishan was harmless because the Government “knew of the opinions contained in 7 the records of [his] treating physicians,” since he provided it with “medical records and 8 correspondence.” (Doc. 57 at 12). But Plaintiff’s non-compliance with the rules of 9 discovery was not harmless because Plaintiff never disclosed experts, even after the 10 Government disclosed its own, and because the Government did not have the opportunity 11 to depose Drs. Liu and Kishan as causation experts before the close of expert discovery in 12 April 2025. (Doc. 59 at 6). Though Plaintiff has borne the burden of raising harmlessness 13 as to Drs. Liu and Kishan, simply stating that his violations of Rule 26 and the CMO were 14 “harmless” does not satisfy his burden of “showing harmlessness.” Key, 129 F.4th at 1143; 15 Yeti, 259 F.3d at 1107. As such, Plaintiff cannot introduce any expert testimony through 16 Drs. Liu or Kishan. 17 3. Plaintiff’s failure to disclose himself as an expert was harmless. 18 19 In contrast, Plaintiff’s failure to disclose himself as an expert was rendered harmless 20 because the Government had notice of Plaintiff’s opinions (Doc. 58-3) and was able to 21 depose him on the basis of the opinions that he offered in his April 2023 Declaration (Doc. 22 58-2 at 47-48). Indeed, in his April 2023 Declaration, Plaintiff does opine—“[a]s a 23 physician”—that the PSA level of 16.9 was “a strong indication” of cancer, “that the cancer 24 had grown dramatically from January to June” of 2021, and that he “could have had a 25 resection of his prostate in January/February 2021 with a survival rate of 95%.” (Doc. 58- 26 3 at 2-3). During Plaintiff’s deposition, the Government asked about—and Plaintiff 27 explained—his opinions on the meaning of a “skyrocket[ing]” PSA level, survival rates 28 associated with surgical eligibility or ineligibility, and the relationship between the two. 1 (Doc. 58-2 at 47-48). Moreover, at Oral Argument, the Government did not provide any 2 legal authority to suggest that, in light of these facts, it was prejudiced by Plaintiff’s failure 3 to disclose himself. Accordingly, Plaintiff is not barred from offering his own expert 4 testimony despite his violations of Rule 26 and the CMO. 5 III. Arizona Medical Malpractice & Causation 6 With no summary of the intended testimony or the underlying facts and opinions, 7 the Court’s assessment of the proffered expert testimony relies on Plaintiff’s April 2023 8 Declaration2 and on Plaintiff’s deposition testimony.3 Plaintiff alleges that he was injured 9 by the delayed diagnosis of his prostate cancer because it eliminated the option to undergo 10 surgical resection of the prostate rather than having to undergo radiation and thus decreased 11 his chances of survival. (Doc. 1 at 5; Doc. 57 at 3-4). Resection—which may be an option 12 while the cancer is limited to the prostate gland—has a higher survival rate than drug and 13 radiation therapy and would allow a faster recovery.4 (Doc. 57 at 3). As discussed below, 14 Plaintiff has sufficiently demonstrated a genuine issue of material fact as to causation on 15 his loss-of-chance theory by pointing to evidence in the record upon which a fact-finder 16 could find that the VA’s delay in providing his PSA results substantially decreased his 17 chance of survival or better recovery. As such, his claim survives summary judgment. 18 A. Legal Standard 19 The FTCA provides that plaintiffs may recover money from the United States for 20 “personal injury or death caused by the negligent or wrongful act or omission of any 21 employee of the Government while acting within the scope of his office or employment, 22 2 The Court does not consider Plaintiff’s June 2025 Declaration because it not only post- 23 dates his December 2024 expert disclosure deadline but also the February 2025 rebuttal expert disclosure deadline, the February 2025 fact discovery deadline, and the April 2025 24 expert deposition deadline. 3 As the Government pointed out in its Reply (Doc. 59 at 2 n.2), Plaintiff did not file a 25 controverting statement of facts in conjunction with his Response. (Compare Doc. 57, with Doc. 58). Plaintiff did, however, provide his exhibits (Docs. 58-1–58-15), which, to the 26 extent they were disclosed prior to the discovery cut-off in this matter, the Court considered in its analysis. 27 4 Plaintiff asserts in his April 2023 Declaration that surgical resection has a 95% cure rate and that radiation therapy has a 20% cure rate. (Doc. 58-3 at 3). In his Response and 28 Deposition, however, he claims that surgical resection has a 90% cure rate and that radiation therapy has a 10% cure rate (Doc. 57 at 3; Doc. 58-2 at 47-48). 1 under circumstances where the United States, if a private person, would be liable to the 2 claimant.” 28 U.S.C. § 1346(b)(1). Liability is determined by the law of the state where 3 the incident occurred—in this case, Arizona. Id. 4 “In medical malpractice actions, as in all negligence actions, the plaintiff must prove 5 the existence of a duty, a breach of that duty, causation, and damages.” Henke v. Hosp. 6 Dev. of W. Phx., 578 P.3d 47, 52 (Ariz. 2025) (quoting Seisinger v. Siebel, 203 P.3d 483, 7 492, 220 Ariz. 85, 94 (2009)). To establish the elements of duty and breach, a plaintiff 8 must show that “[t]he health care provider failed to exercise that degree of care, skill and 9 learning expected of a reasonable, prudent health care provider [in Arizona] in the 10 [provider’s] profession or class . . . in the same or similar circumstances.” A.R.S. § 12- 11 563. As for the element of causation, a plaintiff must prove that “[s]uch failure was a 12 proximate cause of the injury,” id., by showing “a natural and continuous sequence of 13 events stemming from the defendant’s act or omission, unbroken by any efficient 14 intervening cause, that produces an injury, in whole or in part, and without which the injury 15 would not have occurred.” Henke, 578 P.3d at 52 (quoting Sampson v. Surgery Ctr. of 16 Peoria, LLC, 491 P.3d 1115, 1118, 251 Ariz. 308, 311 (2021)). 17 But, in certain cases, when the “defendant has negligently breached an undertaking 18 to prevent a certain harm,” the “threshold of proof to reach a jury on causation” is lower. 19 Lohse v. Faulter, 860 P.2d 1306, 1314, 176 Ariz. 253, 261 (Ct. App. 1992) (quoting 20 Thompson v. Sun City Cmty. Hosp., Inc., 688 P.2d 605, 613-14, 141 Ariz. 597, 605-06 21 (1984)). Then, “even if the evidence permits only a finding that the defendant’s negligence 22 increased the risk of harm or deprived plaintiff of some significant chance of survival or 23 better recovery, it is left for the jury to decide whether there is a probability that defendant’s 24 negligence was a cause in fact of the injury.” Thompson, 688 P.2d at 614, 141 Ariz. at 606. 25 This standard reflects the difficulties of assessing causation when the “[d]efendant’s 26 negligent act or omission made it impossible to find with certainty what would have 27 happened . . . forc[ing] the court to look at the proverbial crystal ball in order to decide 28 what might have been.” Id. at 616, 141 Ariz. at 608. 1 Indeed, a plaintiff must show that there was a “substantial possibility of survival” 2 or better recovery. Lohse, 860 P.2d at 1316, 176 Ariz. at 263 (citing Hicks v. United States, 3 368 F.2d 626, 632 (4th Cir. 1966)). It cannot be speculative as to whether the defendant 4 “would have been positioned to prevent harm.” Id. Yet even where a defendant is 5 positioned to prevent harm, the plaintiff must show that the defendant’s “actions increased 6 the risk of harm to her beyond that which existed in the absence of” those actions. Stanley 7 v. McCarver, 92 P.3d 849, 854, 208 Ariz. 219, 224 (2004); Lohse, 860 P.2d at 1316, 176 8 Ariz. at 263. And “the proof . . . must rise to the level of substantiality.” Lohse, 860 P.2d 9 at 1316, 176 Ariz. at 263. In other words, a plaintiff cannot solely rely on the argument 10 that the defendant’s actions “increased the probability” of injury, because “probability runs 11 from infinitesimal to nearly certain” and “can increase from one to another insignificant 12 degree.” Lohse, 860 P.2d at 1317, 176 Ariz. at 264. 13 B. Analysis 14 Here, Plaintiff has alleged a loss-of-chance in survival and ability to successfully 15 treat his prostate cancer due to the VA’s failure to timely provide him with his January 19, 16 2021 lab results, including his PSA level. (Doc. 1 at 5). The crucial issue is whether the 17 VA, “in the absence of negligence, would have been positioned to prevent harm”—i.e., 18 whether the absence of negligence would have had a significant impact on Plaintiff’s 19 probability of survival or better recovery. Plaintiff’s proffered expert testimony could 20 support a finding that the VA’s delay increased the risk of harm by allowing the cancer to 21 grow and his PSA level to rise between January and July 2021, making it more likely that 22 his cancer metastasized and less likely that he was surgical candidate, which in turn 23 impacted his chance of survival or better recovery. (Doc. 58-2 at 47-48; Doc. 58-3 at 3). 24 Plaintiff opined that he “could have had a resection of [his] prostate in January/February 25 2021,” (Doc. 58-3 at 3), and provided probabilities of survival or a cure based on his 26 eligibility for prostate resection—90-95% if eligible, and 10-20% if ineligible (Doc. 58-2 27 at 47-48; Doc. 58-3 at 3). 28 While evaluating causation on these facts may require speculation, in a loss-of- 1 || chance case, a fact-finder is permitted “to engage in some speculation with regard to cause 2|| and effect.” Thompson, 688 P.2d at 616, 141 Ariz. at 607. Indeed, Plaintiffs case is a core || example of loss-of-chance, where the VA’s “negligent act or omission made it impossible to find with certainty what would have happened” if Plaintiff had been apprised of his PSA || results so that the extent of his cancer and his eligibility for surgery could have been || assessed in January 2021. /d. at 616, 141 Ariz. at 608. In other words, at the summary 7|| judgment stage, the VA may not benefit from the lack of certainty created by its alleged 8 || negligence. 9 CONCLUSION 10 Because Plaintiff's failure to disclose Drs. Liu and Kishan was not harmless, Plaintiff may not rely on their expert testimony. As such, Plaintiff's own expert testimony is the basis for the Court’s finding that Plaintiff has sufficiently identified evidence in the 13 || record to survive summary judgment. Because Plaintiff's proffered expert testimony is indeed sufficient to support his loss-of-chance theory at the summary judgment stage, 15 IT IS ORDERED that the Government’s Motion for Summary Judgment (Doc. 52) is DENIED. 17 Dated this 21st day of May, 2026.

20 Senior United States District Judge 21 22 23 24 25 26 27 28

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