In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1648

DAVID B. GICLA,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 C 7236—Sidney I. Schenkier, Magistrate Judge.

ARGUED JANUARY 13, 2009—DECIDED JULY 15, 2009

Before BAUER, POSNER, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Plaintiff-appellant David B. Gicla

had his right-ankle joint replaced with an implant at a

Veteran’s Administration Medical Center in Chicago.

After the implant failed to relieve the chronic pain and

swelling that Gicla was experiencing, a series of five

additional surgeries followed, culminating in the amputation of his right leg below the knee. Gicla filed this

suit for malpractice against the United States and various
2 No. 08-1648

VA medical personnel pursuant to the Federal Tort

Claims Act, 28 U.S.C. § 2671, et seq. The individual defendants were dismissed from the suit, and the case was

tried to the bench. The magistrate judge, presiding with

the parties’ consent, entered judgment in favor of the

United States, finding that the VA medical personnel

who treated Gicla did not breach the duty of care that

they owed to him. Gicla appeals. He primarily challenges

the district court’s refusal to exclude the testimony of

a defense expert for a purported violation of Federal

Rule of Civil Procedure 26, after the expert disclosed on

cross-examination that just before taking the witness

stand he looked at x-rays that he had not previously

reviewed in rendering his opinion on behalf of the

United States. Gicla also contends that the district court

erred in crediting the United States’ witnesses over his

own. Finding no error, we affirm the judgment.

In 1999, Gicla consulted with Dr. John Grady, director

of the podiatry service at the Westside VA Medical

Center in Chicago. Gicla had severe arthritis in his

right ankle stemming from a fracture he suffered in a

motorcycle accident some twenty years earlier, while he

was serving in the U.S. Navy. The arthritis caused him

to experience extreme pain and swelling. After nonsurgical efforts at relieving his symptoms proved unsuccessful, and after discussing his options with Dr. Grady,

Gicla agreed to have his ankle joint replaced using the

DePuy Agility® Total Ankle System, an implant which

had only recently been approved by the U.S. Food and

Drug Administration. Gicla was 40 years old at that time.
No. 08-1648 3

The surgery, performed in April 1999, was the first

occasion on which VA physicians had used the DePuy

Agility® implant. Dr. Grady performed the surgery

with the assistance of resident Dr. Jonathan Norton.

During the procedure, they removed a screw that had

been used to repair the facture Gicla had suffered years

before. The head of the screw broke off as the surgeons

tried to remove it. Because they lacked an appropriatelysized trephine to hollow out the bone around the

screw and facilitate the screw’s removal, they were

forced to use an osteotome and mallet, which may have

resulted in the removal of more bone surrounding the

screw than a trephine would have. Also during the surgery, either when the implant was inserted or when the

ankle was flexed following the implantation, the lower

portion of Gicla’s fibula (calf bone), also known as the

lateral malleolus, cracked. Such fractures are a known

risk of implant surgery. The surgery was otherwise uneventful.

The implant did not improve Gicla’s discomfort, however, and a series of follow-up surgical procedures ensued. In July 1999, Drs. Grady and Norton removed a bony

regrowth from his right ankle and lengthened his Achilles

tendon to increase the range of motion in his foot. In

August 2000, Dr. Grady removed the implant and the ankle

joint was fused. One year after that, much of the remaining

hardware in the ankle was removed. The following year,

yet another surgery was performed in an effort to salvage

the fusion. Still, Gicla continued to experience pain and

difficulty using his right leg. Ultimately, in October 2003,

Gicla had his right leg amputated eight to ten inches below
4 No. 08-1648

the knee. The final three surgeries were performed in

Milwaukee, where the Giclas had relocated.

Gicla filed this suit in October 2003 complaining of

medical malpractice. Gicla alleged that he was too young

for the implant procedure performed in 1999 (given the

expected life of the implant) and that he was not

properly advised of the risks attendant to an ankle replacement. He also alleged that Drs. Grady and Norton

made certain mistakes in performing the initial surgery

in April 1999 and the follow-up surgery in July which

contributed to the failure of the implant to resolve his

discomfort, including using the wrong-sized implant,

removing too much bone in extracting the broken screw,

failing to use bone wax to prevent bone growth in unwanted areas (e.g., the area around the removed screw),

fracturing his fibula, failing to stabilize the implant,

failing to use a bone stimulator to hasten bone regrowth

in desired areas, and damaging or displacing his

deltoid ligament during the follow-up surgery.

At trial, Dr. George Vito testified as an expert witness

on the government’s behalf. Federal Rule of Civil Procedure 26(a)(2)(B) requires the party who proffers an expert

to make certain pre-trial disclosures, including, among

other things, (i) a statement of the opinions the expert

will express, along with the bases and reasons for those

opinions, (ii) any data or other information considered

by the expert in forming his opinions, and (iii) any

exhibits that will be used to summarize or support those

opinions. If the initial disclosure is incomplete, or if there

is a subsequent addition to or change in the information
No. 08-1648 5

disclosed, the expert’s proponent has an obligation to

supplement its disclosure pursuant to Rules 26(a)(2)(D)

and 26(e). Rule 37(c)(1) in turn calls for the exclusion of an

expert’s testimony if the requisite disclosures have not

been made, “unless the failure was substantially

justified or is harmless.” Consistent with Rule 26(a)(2)(B),

the government in advance of trial disclosed Dr. Vito’s

opinions, the rationale for those opinions, and the information he considered in forming them. One source of

information that Dr. Vito did not consult in forming his

opinions was a series of twenty to thirty x-rays of Gicla’s

ankle that were taken at various times before and after

his implant surgery in April 1999. Rather than reviewing

the x-rays himself, Dr. Vito relied on the radiological

findings as to what those x-rays revealed. This was

known to Gicla’s counsel, presumably as a result of both

the government’s Rule 26 disclosures and follow-up

discovery as to Dr. Vito’s opinions. Gicla’s counsel

planned to drive home this point in cross-examining

Dr. Vito at trial and to suggest to the court that his opinions should be given less weight than Gicla’s own

expert, who had examined the x-rays. But when the

time came to cross-examine Dr. Vito, Gicla’s counsel

was surprised to learn from Dr. Vito that he had reviewed

the x-rays earlier that day, before he took the witness

stand. Tr. 391. Dr. Vito confirmed that he had not looked

at the x-rays in forming his opinions prior to trial; his

first and only review of the x-rays had taken place

earlier that day. Tr. 391-92. Dr. Vito also testified that the

x-rays had not altered his views. “My opinion has not

changed.” Tr. 391. When asked if they had confirmed or
6 No. 08-1648

aided his analysis, Dr. Vito said that “if anything, they

helped me expand upon my testimony right now . . . .” Tr.

392. But Dr. Vito never explained how the x-rays helped

him to elaborate on his opinions, as Gicla’s counsel

elected not to question him further on that subject.

Instead, he moved to strike Dr. Vito’s testimony altogether.

Gicla’s counsel took the position that it was a violation

of the government’s obligations under Rule 26 for Dr. Vito

to testify as an expert when his opinions were now informed by his review of the x-rays, and when his

belated review of those x-rays had not been disclosed to

Gicla in accordance with the rule. Gicla was prejudiced

by the violation, his attorney argued, because counsel

had planned Dr. Vito’s cross-examination believing that

Dr. Vito had rendered his opinions without reviewing

the x-rays. Dr. Vito’s unexpected disclosure that he had

taken a look at the x-rays and that they did not change

his opinion blocked the line of attack that Gicla’s counsel

had intended to pursue and left him unprepared

to question Dr. Vito about what he saw or didn’t see in

the x-rays. Counsel added that he was unable to

consult with Gicla’s expert (who was not present at

the trial) in order to prepare appropriate questions for

Dr. Vito now that Dr. Vito had seen the x-rays.

The district court declined to strike Dr. Vito’s testimony.

The court was critical of the government for having

shown Dr. Vito the x-rays on the morning of his testimony.

Tr. 397-99. The government obviously had done this to

neutralize the anticipated cross-examination of Dr. Vito,

Tr. 398, and in the court’s view, the government should
No. 08-1648 7

have shown Dr. Vito the x-rays at an earlier date and

disclosed this to the plaintiff, so that Gicla would have

had an opportunity to question Dr. Vito before trial as to

what the x-rays revealed, Tr. 398-99. But the court saw

any violation of Rule 26(a)(2) as harmless. Tr. 396. In

response to questions posed by Gicla’s counsel, Dr. Vito

had admitted that he formed his opinions without reviewing the x-rays; moreover, looking at the x-rays

had not changed Dr. Vito’s opinions. Tr. 395, 399. Gicla’s

counsel, in turn, agreed that Dr. Vito’s testimony on

direct examination did not deviate from the opinions

disclosed prior to trial in accordance with Rule 26(a)(2).

Tr. 399. The court offered Gicla’s attorney a recess so that

Gicla could determine what particular x-rays Dr. Vito

had reviewed and consider what questions he might like

to ask Dr. Vito about them before resuming his crossexamination. Tr. 394, 399-400. The court added that “if

you have something else that you want, I’m willing to

listen to you.” Tr. 396. However, counsel declined the

offer, Tr. 400, and instead elected to complete Dr. Vito’s

cross-examination without delving into the x-rays. 

On appeal, Gicla renews his contention that Dr. Vito’s

belated review of the x-rays, without warning to the

plaintiff, was a violation of Rule 26(a)(2) that was prejudicial to his case. He contends that the only proper

way to address this violation was to strike Dr. Vito’s

testimony pursuant to Rule 37(c)(1). In Gicla’s view, the

exclusion of Dr. Vito’s testimony would have so altered

the balance of the evidence as to entitle him to judgment.

We review the district court’s decision not to exclude

Dr. Vito’s testimony for abuse of discretion. See, e.g., Jenkins
8 No. 08-1648

v. Bartlett, 487 F.3d 482, 488 (7th Cir. 2007); Salgado ex rel.

Salgado v. Gen. Motors Corp., 150 F.3d 735, 739, 742 (7th Cir.

1998). We find no abuse of discretion in the manner

in which the district court handled this issue.

We may assume without deciding that Dr. Vito’s

eleventh-hour review of the x-rays amounted to a violation

of Rule 26 regardless of whether his opinions changed as a

result of that review. By requiring the pre-trial disclosure

of any expert testimony that a party intends to offer, along

with the bases for the expert’s opinions, Rule 26 is designed to avoid surprise and give the opposing party a full

opportunity to evaluate the expert’s methodology and

conclusions and to respond appropriately. See Rule 26(a)(2)

advisory committee’s note, 1993 amendments. Dr. Vito

formed his opinions as to the care provided to Gicla

without reviewing the x-rays; he instead relied on the

radiological reports. This gave Gicla an opening to attack

the validity of Dr. Vito’s opinions at trial that Gicla’s

counsel fully intended to exploit. At no time in advance

of trial, and certainly not within the time set by the

court for Rule 26 disclosures, did the United States

disclose an intent to have Dr. Vito review the x-rays

before he took the witness stand. Dr. Vito’s unannounced

review of the x-rays foreclosed to Gicla the line of attack

his counsel had anticipated pursuing and, more pertinently, given the purposes of Rule 26, deprived him of

forewarning as to the impact of the x-rays on Dr. Vito’s

thinking, the opportunity to question Dr. Vito on that point

during discovery, and the ability to adjust his crossexamination at trial accordingly.
No. 08-1648 9

Still, as the district court noted, there is no evidence

that Gicla was unduly prejudiced by the surprise. Although Dr. Vito did suggest that seeing the x-rays enabled

him to “expand upon [his] testimony,” Tr. 392, the court

found, and Gicla’s counsel conceded, that Dr. Vito’s

testimony on direct examination differed in no respect

from the opinions disclosed prior to trial. Tr. 399. After

his motion to strike that testimony was denied,

Gicla’s counsel opted not to cross-examine Dr. Vito about

the x-rays and Dr. Vito made no other reference in his

testimony to them. At most, it appears that Dr. Vito’s

review of the x-rays simply confirmed what he had

already concluded. Tr. 391-92.

It is true that Gicla was deprived of his anticipated

challenge to Dr. Vito’s opinions, but that is not what

Rule 26 was designed to protect. Trials serve a truthseeking function, and if Dr. Vito’s opinions were not

altered by his review of the x-rays, then the factfinder

was entitled to know that. The real harm was that Gicla

and his counsel were deprived of the opportunity to

know in advance of the trial that Dr. Vito’s opinion

was unchanged, and to prepare to cross-examine him on

that point.

This is why it matters that the district court offered

Gicla’s counsel the opportunity to take a break in order

to determine what x-rays Dr. Vito had reviewed and to

ascertain whether he wished to cross-examine Dr. Vito

on those x-rays. Gicla could have used that opportunity

to determine what questions he might wish to ask of

Dr. Vito knowing that Dr. Vito had now seen the x-rays.
10 No. 08-1648

Having previously questioned Gicla’s expert, Dr. David 1

Plotkin (whose deposition was later admitted into evidence

in lieu of his testimony at trial), Gicla’s attorney was well

aware of what Dr. Plotkin saw in the x-rays that he believed

was indicative of negligence on the part of the VA physicians.

See, e.g., R. 85 at 35 (noting significant space around removed

(continued...)

We have recognized the propriety of such measures to

correct Rule 26 violations. See Fidelity Nat’l Title Ins. Co. of

N.Y. v. Intercounty Nat’l Title Ins. Co., 412 F.3d 745, 752

(7th Cir. 2005). Gicla contends that this was an empty

offer because his own expert was not present at the

trial (the deposition of Gicla’s expert was instead admitted into evidence by agreement) and was not immediately available for consultation, so there was no point in

such a break. Yet, so far as the record reveals, Gicla’s

counsel never made an attempt to reach his expert. Even

if his expert was unavailable at that moment, Gicla

has not shown that his cross-examination of Dr. Vito

would have been materially different had he not been

caught by surprise by the belated disclosure that Dr. Vito

had reviewed the x-rays. As we pointed out at oral argument, nothing would have prevented Gicla’s lawyer

from consulting with the expert at a later date and

making a proffer of what he would have done differently

had he received timely notification of the x-ray review.

Nor was Gicla precluded from highlighting for the

court the noteworthy information that his own

expert had gleaned from the x-rays that Dr. Vito

had (apparently) overlooked or discounted. It is worth

1
No. 08-1648 11

(...continued) 1

screw), 38-39 (noting void and trauma resulting from removal

of screw, which, in Dr. Plotkin’s view, led to bone spurs

that required second operation, which in turn resulted in

destabilization of ankle), 56 (noting “huge” space between

tibia and fibula, which suggested that smaller implant should

have been used), 57-58 (noting deviation and lack of stability

owing, in Dr. Plotkin’s view, to surgeon’s failure to properly

position, support, and protect lateral malleolus), 64 (noting

that more of fibula was removed than recommended by

implant manufacturer). We add that Dr. Grady too was questioned about certain of the x-rays by both the government and

Gicla. See, e.g., Tr. 172-175, 189-194, 200-03. So Gicla’s counsel

had some familiarity with the x-rays that would have helped

him to make a showing of prejudice resulting from Dr. Vito’s

surprise disclosure.

pointing out that this was a bench trial, and there was

an interim of nearly a week between the conclusion of

the trial and the issuance of the magistrate judge’s decision. Even after the decision was rendered, there was

additional time in which to file an appropriate post-trial

motion. So granting that it may have been difficult

for Gicla’s lawyer to make a more concrete showing of

prejudice in the midst of trial, time remained afterward

in which to make such a showing. Had Gicla taken the

opportunity to demonstrate how he might have more

effectively cross-examined Dr. Vito with timely notice

that Dr. Vito had reviewed the x-rays, the court might

have reconsidered its ruling, given Gicla the opportunity

to re-call Dr. Vito to the stand or reopen the evidence

for some other purpose, or granted Gicla a new trial.
12 No. 08-1648

But Gicla did not attempt to make a more convincing

showing of prejudice. On this record, we cannot discern

any concrete harm that Gicla suffered as a result of the

unexpected disclosure.

The fact that this was a bench trial also served to minimize any prejudice to Gicla. The Magistrate Judge

was aware of what had occurred, understood perfectly

well that Dr. Vito had formed his opinions without

looking at the x-rays, and also appreciated the fact that

Gicla’s counsel was put at a disadvantage at trial by

the surprise disclosure.

One last point on this subject: Gicla presumes that had

Dr. Vito’s testimony been excluded, the deposition testimony of his own expert, Dr. David Plotkin, would have

stood unchallenged, compelling the district court to find

in his favor. For that reason, he contends that the error

in allowing Dr. Vito’s testimony entitles him to

reversal with directions to enter judgment in his favor,

or alternatively to a new trial.

But his presumption is flawed for multiple reasons. First,

even if Dr. Plotkin’s testimony had not been expressly

contradicted by way of the government’s expert, in no

sense would the district court have been compelled to

credit his opinions and render judgment for Gicla. The

court could have found fault with Dr. Plotkin’s analysis,

for example. Moreover, Dr. Plotkin’s opinion would not

have been the sole opinion concerning the adequacy of

Gicla’s medical care even in the absence of Dr. Vito’s

testimony. The VA doctors who performed the implant

surgery on Gicla also testified, and of course as his
No. 08-1648 13

treating physicians, they were qualified to offer opinions

as to the propriety of the treatment he received. Like

Dr. Vito, Dr. Grady was led through most if not all of

the opinions that Dr. Plotkin had expressed (although

Dr. Plotkin was not cited as the source of those opinions),

and like Dr. Vito, Dr. Grady disagreed with them. Indeed,

the district court’s decision in favor of the government

reflects that it did credit and rely upon the treating physicians’ testimony in significant respects.

Which brings us to the final issue that Gicla raises: He

argues that the district court erred in crediting the testimonies of Dr. Vito and the treating physicians over that

of Dr. Plotkin and that the court’s judgment in favor of

the government was against the manifest weight of the

evidence. As the basis for that argument, he relies on a

variety of inconsistencies among the testimonies of the

government’s witnesses. For example, Dr. Vito thought

that arthroscopy might have been an option for Gicla in

the first instance, Tr. 389-90, but the testimonies of

Drs. Grady and Norton reflected no discussion of

arthroscopy with Gicla. Tr. 44, 51, 269-70, 297. In other

instances, the physicians were in agreement on certain

points as to the limitations or risks of the implantation

procedure, but gave testimony that raised questions

about whether their decisions were in accord with those

known limitations and risks. For example, Dr. Grady

testified that if a patient’s ankle joint had deteriorated

beyond a certain point, then an implant was not a viable

option. Tr. 168-69. And when asked about what Gicla’s presurgery x-rays showed about the condition of his ankle,

Dr. Norton stated that “[h]e didn’t have much of an
14 No. 08-1648

ankle joint left”: the joint had no remaining cartilage and

reflected deformity due to arthritis. Tr. 264, 265-66. Both

doctors also indicated that Gicla’s history of smoking

and drug and alcohol abuse could interfere with his

ability to successfully heal from the implant surgery. Tr. 33,

306, 309-10, 344-45. Yet, Dr. Grady was not certain how

much they knew about this history before performing

the implant, Tr. 33-34, and although Dr. Norton was

aware of Gicla’s history of smoking, he was unaware of

his history of substance abuse, Tr. 306-08, 336.

As Gicla’s argument recognizes, the ultimate decision

in this case as to whether or not the VA physicians committed malpractice turned largely on the credibility of

the witnesses. There were disputes between Mr. and

Mrs. Gicla on the one hand and Gicla’s treating physicians

on the other as to some of the underlying facts—in particular, as to the options the physicians had discussed

with Gicla prior to his implant surgery and the warnings

they gave him about the risks associated with that surgery. Those types of disputes presented straightforward credibility questions for the magistrate judge

to resolve as the finder of fact. But there were also

disputes of opinion among the parties’ expert witnesses

and the treating physicians. Although those professionals

were commenting largely on the same body of evidence

relating to Gicla’s course of treatment, they came to

directly contradictory conclusions as to what that

evidence revealed about the propriety of the care Gicla

received. Thus, when Dr. Vito testified on behalf of the

government, he was walked through each of Dr. Plotkin’s

opinions as to the mistakes he believed Gicla’s VA physi-
No. 08-1648 15

cians had made, and Dr. Vito rejected each of those opinions. So the case also presented a classic battle of the

experts. And in that respect as well, the case called

upon the factfinder to determine what weight and credibility to give the testimony of each expert and physician.

See United States v. Olofson, 563 F.3d 652, 659 n.6 (7th Cir.

2009); Soria v. Ozinga Bros., Inc., 704 F.2d 990, 994 n.6

(7th Cir. 1983); see also Kinetic Concepts, Inc. v. Blue Sky

Medical Group, Inc., 554 F.3d 1010, 1020 (Fed. Cir. 2009);

Crowe v. Marchand, 506 F.3d 13, 19 (1st Cir. 2007); United

States v. Uzenski, 434 F.3d 690, 703 n.6 (4th Cir. 2006);

Phillips v. Cohen, 400 F.3d 388, 399 (6th Cir. 2005); LePage’s

Inc. v. 3M, 324 F.3d 141, 165-66 (3d Cir. 2003) (en banc);

Streber v. Hunter, 221 F.3d 701, 726 (5th Cir. 2000). The

credibility determinations that a judge renders as the

finder of fact command a high degree of deference. E.g.,

United States v. Longstreet, ___ F.3d. ___, 2009 WL 1577692,

at *10 (7th Cir. June 8, 2009). We will normally have

no reason to disturb a court’s evaluation of witness credibility unless the court has credited patently improbable

testimony or its credibility assessments conflict with its

other factual findings. E.g., Kidd v. Ill. State Police, 167

F.3d 1084, 1095 (7th Cir. 1999) (citing Anderson v. City of

Bessemer City, N.C., 470 U.S. 564, 575, 105 S. Ct. 1504,

1512 (1985)).

No such error occurred here. Although there were, as

Gicla emphasizes, certain inconsistencies and vulnerabilities in the testimonies of the government’s witnesses, nothing precluded the district court from

crediting their opinions as to the propriety of the care

that Gicla received. The testimonies of Drs. Vito, Grady,
16 No. 08-1648

and Norton were consistent with one another in

important respects. Dr. Vito had significant experience

with the type of implant surgery that Drs. Grady and

Norton performed on Gicla, and of course as Gicla’s

treating physician the latter two were intimately familiar

with his condition and the surgery they performed. Dr.

Plotkin, by contrast, had no experience with the type of

implant used on Gicla and in fact did not do implant

surgeries, and he had never examined Gicla. The district

court reviewed at length the testimonies of all four physicians and articulated cogent reasons for rejecting

Dr. Plotkin’s opinions and crediting the views of the

government’s witnesses. The court was aware of and

addressed many of the points that Gicla has cited. It did

not credit the government’s witnesses across the board,

although it ultimately did agree with them that Gicla’s

physicians did not provide him with substandard care.

The court’s factual findings, including its credibility

assessments, are well supported by the record.

For all of these reasons, we reject Gicla’s assignments

of error and AFFIRM the judgment in the government’s

favor.

7-15-09