[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-10281

Non-Argument Calendar

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D.C. Docket No. 6:13-cv-00058-BAE-GRS

BARTOW C. DUTTON,

 Plaintiff,

EDNA R. DUTTON,

Individually and as Administrator of the Estate of Bartow C. Dutton, 

 Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA, 

 Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Georgia

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(June 16, 2015)

Before MARCUS, WILLIAM PRYOR, and MARTIN, Circuit Judges.

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PER CURIAM: 

Edna R. Dutton, as administrator of the estate of her late husband Bartow C. 

Dutton, appeals the dismissal of her Federal Tort Claims Act (FTCA) claim, 28 

U.S.C. § 1346(b). Dutton alleges that doctors and staff of the Charlie Norwood 

Veterans Administration Medical Center (VAMC) committed medical malpractice 

under Georgia law. Specifically, she argues that Dr. David H. Riggans failed to 

properly perform an angiography, and that subsequently, various other VAMC 

employees failed to properly treat a condition that developed in Dutton’s right leg. 

She contends that these failures resulted in “Mr. Dutton’s intense suffering, agony 

and the loss of his entire right leg due to amputation.” The district court granted 

partial summary judgment to the United States for claims against Dr. Riggans 

because he was an independent contractor—not an employee—under the FTCA. 

The court then granted summary judgment to the government on all remaining 

claims, holding that Dutton’s only proffered expert was not competent to testify 

under Georgia evidentiary rules, O.C.G.A. § 24-7-702(c). After careful 

consideration, we affirm.

I.

Bartow Dutton was a veteran eligible for medical care at the VAMC. On 

May 24, 2010, Dutton was admitted to the VAMC after complaining of abdominal 

pain, vomiting, and loose stools. Testing revealed that he suffered from mesenteric 

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ischemia, a vascular disease in which insufficient blood supply to the small 

intestine causes intestinal damage. As treatment, Dr. Riggans attempted to stent 

the blocked superior mesenteric artery. That attempt failed.

The night after the failed procedure, Dutton told staff at the VAMC that he 

felt as though he was losing blood flow in his right leg. A nurse could feel no 

pulse in his foot, and noted that his leg was discolored and cool to the touch. A 

vascular surgery team evaluated Dutton and determined that he had developed a 

blood clot in his right leg. Still, Dr. Manuel F. Ramirez, who led the team, 

recommended conservative treatment, noting the following:

Given, patient’s active issues with mesenteric ischemia and GI 

bleed, he has a strong contraindication to anticoagulation, the patient 

was instructed to hang his right leg off the side of his bed and to be 

treated with conservative measures at this point in time. 

It was discussed [with the] patient that there may be a 

possibility that he will require an AKA [above knee amputation] in

the future. 

The next morning, Dutton’s right leg remained cold and pulseless. Dr. 

Ramirez noted that the “general consensus was to proceed with a repeat aortogram 

with intent to revascularize the celiac trunk and proceed with ly[t]ic therapy of his 

thrombosed RLE.” Dutton was transferred to the Medical College of Georgia to 

continue lytic therapy. The therapy was unsuccessful, and “in light of the patient’s 

mesenteric ischemia and risk of having an acute dead bowel presentation masked 

by the right lower extremity problems, it was decided to proceed with a lower 

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extremity amputation.” Dutton’s right leg was amputated on June 6, 2010. 

II.

“We review de novo the district court’s grant of summary judgment and use 

the same standard of review utilized by the district court.” Miccosukee Tribe of 

Indians of Fla. v. United States, 566 F.3d 1257, 1264 (11th Cir. 2009). “The court 

shall grant summary judgment if the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56. A court views the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 

587, 106 S. Ct. 1348, 1356 (1986). Summary judgment is appropriate when a nonmovant “fails to make a showing sufficient to establish the existence of an element 

essential to that party’s case, and on which that party will bear the burden of proof 

at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 

(1986).

III.

We first address whether the district court erred by granting partial summary 

judgment because Dr. Riggans was an independent contractor. The FTCA 

“waive[s] the sovereign immunity of the United States for certain torts committed 

by federal employees.” FDIC v. Meyer, 510 U.S. 471, 475, 114 S. Ct. 996, 1000 

(1994) (citing § 1346(b)). But a plaintiff may not recover against the United States 

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for the torts of an independent contractor. Means v. United States, 176 F.3d 1376, 

1379–80 (11th Cir. 1999). Under this Court’s precedent, “a person is not an 

‘employee of the government’ for FTCA purposes unless the government controls 

and supervises the day-to-day activities of the individual.” Id. at 1379. Said 

another way, “the critical factor in making this determination is the authority of the 

principal to control the detailed physical performance of the contractor.” Logue v. 

United States, 412 U.S. 521, 527–28, 93 S. Ct. 2215, 2219 (1973).

We hold that Dr. Riggans was an independent contractor, not a federal

employee. Dr. Riggans was an employee of Vascular Radiology Associates II 

(VRA). The contract between VRA and the VAMC states that VRA shall render 

services to the VAMC “in its capacity as an independent contractor,” and that 

VRA shall provide its workers compensation, insurance, health examinations, 

income tax withholding, and social security payments. More importantly, the 

contract expressly states:

The Government may evaluate the quality of professional and 

administrative services provided but retains no control over 

professional aspects of the services rendered, including by example, 

the Contractor’s or its health-care providers’ professional medical 

judgment, diagnosis, or specific medical treatments. The Contractor 

and its health-care providers shall be liable for their liability-producing 

acts or omissions.1

 

1 This language is almost identical to the language in the contract at issue in Tsosie v. 

United States, 452 F.3d 1161 (10th Cir. 2006), in which the Tenth Circuit held that a doctor was 

an independent contractor—not an employee—for purposes of the FTCA. Id. at 1164–65.

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Further, VRA—not the VAMC—established Dr. Riggans’s work schedule, and Dr. 

Riggans spent only one-fourth of his time working at the VAMC. 

Beyond the terms of the contract, the parties’ performance suggests that the 

VAMC did not control Dr. Riggans’s day-to-day activities. Dr. Riggans testified 

that VAMC policies did not “dictate[] . . . any specific procedure” he performed. 

He added that “[t]he steps that [he went] through to complete [a] procedure [were]

100 percent on [him].” Similarly, Dr. Gautam Agarwal—a staff surgeon at the 

VAMC—stated that “the [VAMC] vascular surgeons do not tell the contract 

interventional radiologists employed by [VRA] how to perform a procedure, nor 

do they give technical guidance into the course of action that a contract 

interventional radiologist should take.” As the district court put it, “[t]he VAMC 

physicians consulted with Dr. Riggans about patients, but did not tell him how to 

conduct procedures or how to treat an ailment.”

Dutton argues that because the VAMC supplied Dr. Riggans’s equipment, 

facilities, and patients, he should be treated as its employee. However, we agree 

with the Tenth Circuit that this makes little difference: “[w]hen a physician shows 

up to work in today’s world—either as an independent contractor or a full-fledged 

employee—he no longer is likely to carry all relevant medical instruments in a 

black satchel.” Tsosie, 452 F.3d at 1164. Whether the VAMC provided Dr. 

Riggans with equipment does not affect our analysis of its control of his day-to-day 

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activities. Dutton also points to Dr. Riggans’s VAMC identification card which 

listed him as an “employee.” However, this detail does not overcome the myriad 

other facts suggesting he was an independent contractor. In short, the district court 

did not err in finding that Dr. Riggans was an independent contractor for purposes 

of the FTCA.2

IV.

Next, we address the district court’s grant of the government’s motion to 

exclude the expert testimony of Dr. Michael A. Bettmann. 

A.

Dutton preliminarily argues that because this case arises under federal law, 

the district court should have applied the Federal Rules of Evidence, not O.C.G.A. 

§ 24-7-702. To the contrary, in McDowell v. Brown, 392 F.3d 1283 (11th Cir. 

2004), we held that O.C.G.A. § 24-7-702 applies where a federal court exercises 

supplemental jurisdiction over a Georgia medical malpractice action. Id. at 1295. 

Although the general rule is that the Federal Rules of Evidence govern in diversity 

suits, this Court reasoned that Georgia’s evidentiary rules are so intimately 

 

2 Our decision in Bravo v. United States, 532 F.3d 1154 (11th Cir. 2008), is readily 

distinguishable. The contract in that case specifically stated that “[t]he contractor OB/GYN 

physician activities shall be subject to day-to-day direction by Navy personnel in a manner 

comparable to the direction over Navy uniformed and civil personnel engaged in comparable 

work.” Id. at 1160 (alteration omitted). The contract also specified that contract doctors must 

“comply[] with directions received from Navy hospital professional personnel in the course of 

patient care activities.” Id. (alteration adopted). There are no such provisions in VRA’s 

contract.

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intertwined with its medical malpractice laws that it would create an Erie conflict 

not to apply the state evidentiary rules in federal court. Id. 

This, of course, is an FTCA case, not a supplemental-jurisdiction case, so 

the Erie doctrine does not apply. However, in FTCA cases, “the extent of the 

United States’ liability . . . is generally determined by reference to state law.” 

Molzof v. United States, 502 U.S. 301, 305, 112 S. Ct. 711, 714 (1992). And 

Federal Rule of Evidence 601 instructs that in civil cases, “state law governs the 

witness’s competency regarding a claim or defense for which state law supplies the 

rule of decision.” Thus, although not controlling, we believe that our decision in 

McDowell is persuasive here. Georgia’s evidentiary rules for a physician’s expert 

testimony are so intimately intertwined with its malpractice laws that the rules 

must apply in an FTCA case for medical malpractice. That understanding accords 

with the holding of at least one sister Circuit. See Liebsack v. United States, 731 

F.3d 850, 855–56 (9th Cir. 2013) (holding, in an almost identical case, that Alaska 

Statute § 09.20.185 applies in a FTCA action based on medical negligence). In 

short, we agree with the district court that O.C.G.A. § 24-7-702 applies here.3

B.

Next, Dutton argues that even applying Georgia’s evidentiary rules, the 

 

3 Dutton argues that O.C.G.A. § 24-7-702 should not apply because the Georgia Supreme 

Court has held that the statute is procedural. See Nathans v. Diamond, 654 S.E.2d 121 (Ga. 

2007). However, Nathans decided that statute was procedural only for purposes of retroactivity, 

and said nothing about its application in federal courts. Id. at 125.

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district court wrongly excluded the testimony of Dr. Michael Bettmann. “We 

review a district court’s ruling on the admissibility of expert testimony for abuse of 

discretion.” McDowell, 392 F.3d at 1294. “[W]e do not apply a stricter standard 

even though the ruling results in a summary judgment.” Id. “[T]o qualify as an 

expert in a medical malpractice action [in Georgia], the witness must (1) have 

actual knowledge and experience in the relevant area through either ‘active 

practice’ or ‘teaching’ and (2) either be in the ‘same profession’ as the defendant 

whose conduct is at issue or qualify for the exception to the ‘same profession’ 

requirement.”4

 Hankla v. Postell, 749 S.E.2d 726, 729 (Ga. 2013). 

“In order to determine whether OCGA § 24-7-702(c) authorizes the 

admission of [expert] testimony, it is necessary in this case to accurately state both 

the area of specialty at issue and what procedure or treatment was alleged to have 

been negligently performed.” Toombs v. Acute Care Consultants, Inc., 756 S.E.2d 

589, 593 (Ga. Ct. App. 2014) (quotation marks omitted). Georgia courts have 

made clear that “the area of specialty is dictated by the allegations in the 

complaint, not the apparent expertise of the treating physician.” Id. Here, 

Dutton’s complaint alleges negligence for failing “to implement emergent medical 

 

4 “Under the exception, a proffered expert who is a physician is permitted to qualify as an 

expert as to a non-physician health care provider, but only if she has knowledge regarding the 

relevant standard of care as a result of having supervised, taught, or instructed such nonphysician health care providers.” Hankla, 749 S.E.2d at 729 (alteration omitted) (quotation 

marks omitted). We agree with the district court that Dr. Bettmann is not competent to testify as 

to non-physician conduct because “[t]here is nothing in the record showing that [he] taught, 

supervised, or instructed non-physician health care providers.” 

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care and treatment” following “an acute thromboembolic event . . . in Mr. Dutton’s 

right leg.” Thus, as the district court found, “the primary treatment at issue is the 

management of an emergent leg ischemia in a patient with critical mesenteric 

ischemia.” 

The district court did not abuse its discretion when it excluded Dr. 

Bettmann’s testimony about whether the defendants negligently managed the care 

of a patient suffering from critical ischemia. The important distinction here is 

between vascular radiology and vascular surgery. According to Dr. Bettmann, “the 

training in vascular surgery is in surgical procedures,” while “[t]he training in 

[vascular] radiology is in imaging and use of imaging to perform procedures.” Dr. 

Bettmann testified that he was board certified in vascular and interventional 

radiology, but was not certified or trained in vascular surgery. He testified that 

interventional radiologists are not trained to perform surgeries and that he had 

never done one himself. 

His lack of expertise as a vascular surgeon, or in broadly treating a patient 

suffering from critical ischemia, is fatal to his ability to testify about the VAMC’s 

alleged negligence in this case. Dr. Bettmann’s primary contention was that once 

Bartow Dutton showed symptoms like a cold, pulseless leg, the VAMC team 

should have performed one of two procedures within four to six hours: either (1) 

thrombolytic therapy or (2) surgical thrombectomy. Thrombolytic therapy 

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involves the use of drugs to break up or dissolve blood clots. However, Dr. 

Bettmann actually testified that he could “not say[] that [thrombolytic therapy was] 

something that should be done” because of Dutton’s ischemia of his intestines. 

See also id. (“I think you could make a good point about the contraindication.”). 

As for surgical thrombectomy, Dr. Bettmann had never performed the procedure 

that he thought should have been done here, and testified that he did not “know 

how hard or easy it would have been in Mr. Dutton.”

More broadly, the government’s expert—Dr. Jacob Robison—summarized

the problem inherent in Dr. Bettman’s proposed testimony:

[I]nterventional radiologists are not trained as vascular surgeons and 

have no experience with surgical judgment and techniques required to 

manage patients with a complex arterial problem in the context of a 

life threatening situation. 

As an interventional radiologist, Dr. Bettmann . . . has no clinical 

experience in performing vascular surgery procedures, like the 

surgery that he indicates should have been performed on Mr. Dutton 

by Dr. Ramirez on the evening of June 2, 2010.

Speaking to Dutton’s situation here, Dr. Robinson emphasized that the 

“simultaneous compromise of circulation to both the right leg and the intestine” 

presented “a very difficult and challenging problem from the beginning.” Lytic 

therapy was “relatively contraindicated . . . as the [intestinal] bleeding may have 

been exacerbated by the clot-dissolving therapy.” And “[t]he mesenteric ischemia 

was judged immediately more life threatening than the leg ischemia appeared to be 

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immediately limb threatening, and concerns about the bowel preempted any 

attempt to save the leg with a long, complex surgery.” Although Dutton may be 

right that “it does not take a vascular surgeon to know that a blood clot which 

prevents blood flow to a leg will cause that limb to die,” the district court was right 

that it “takes a vascular surgeon to know when intervention to save the limb of a 

critically ill patient will not kill the patient in the process.” The district court did 

not abuse its discretion.

V.

Because the district court did not abuse its discretion when it excluded Dr. 

Bettmann’s testimony, we also affirm the district court’s grant of summary 

judgment. Under Georgia law, “[t]o recover in a medical malpractice case, a 

plaintiff must demonstrate, by expert testimony, a violation of the applicable 

medical standard of care and also that the purported violation of or deviation from 

the proper standard of care is the proximate cause of the injury sustained.” Porter 

v. Guill, 681 S.E.2d 230, 235 (Ga. Ct. App. 2009) (alterations adopted) (emphasis 

added) (quotation marks omitted). Because Dutton’s only expert was properly 

excluded, the United States was entitled to summary judgment.

AFFIRMED.

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