The Honor able R. L eon Jordan, Senior District J udg e for the Easter

n District of * Tenne ssee, sitting by

desig nation. NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON

File Na me: 08a0521n.06 Filed: August 26, 2008 No. 06-2430 UN ITED STA TES C OU RT OF AP P EA LS F O R T H E S IX T H C IR C U IT J ACQUEL I

NE CHEESE, Pla int if f- Ap pe lla nt,
v. THE UNI TED STATES OF AMERI CA, Def endant- Appellee
. ON APPEALFROM THE UN I TE D ST AT ES D I STR I CT CO UR T F OR

TH E E AST ERN DI STRI CT OF MI CHI GAN

/ Be fore : MARTI

N and B ATCHEL DER, Circuit J udg es, and JORDAN, Senior District J u d ge * BO YCE F. MARTI

N, J R., Circuit J udg e. Jacqueline Chee se suffe red c omplications after a diagnostic exam of her bladde r and kidne y s perf ormed at a Vete rans Af

fairs H ospital which eventua lly

led to the loss of one kidney . She sued for medical malpr actice under the Fe dera l Tort Cla ims Ac t a lle g ingbr e a c h o f t he sta nd ard of c are and la c k o f c on se nt t o th e pr oc e dure that le d to her injuries. The district court found ther e had be en a br eac h of the standa rd of c are , but only

as to an ea rly discharg e, and the ref

ore a war ded dama g es only

for the pa in and suffe ringshe endur edduringthe delay of one da y . Cheese now

appea ls claiming that (1) the c ourt inappropr iately used
a cour t-appointed e x pert, a

nd (2) the district c ourt err oneously found that she c onsented to the proce dure. B eca

use the district cour

t’s finding s as to consent a nd bias are supported by

the
rec ord, and be cause Cheese did not other wise objec t to the court’s use of its ex pert, we AFF I RM.

I On April 6, 1998, Cheese went to the Ve tera ns Affa irs Medica l Center due to pa in on the left side of he r lower

back a nd blood in her urine. D octors we re una ble to deter

mine the source of her pain af ter initial exams, and theref ore r ecommende d a cy stoscopy retrograde py elog ram. Under this procedur e, doctor s would insert a tube through her bla dder a nd shoot dy e into the urete r (c onnectingto the kidney ) to identify

the source of her

pain. Prior to the proc edure on April 15, Cheese signe d a conse nt form which identifie d the proc edure as “c y stoscopy , retrograde py elog ram, possible uterosc opy (L ).” Chee se wa s anesthetized, and the pr ocedur e wa s perf ormed by senior re sident Dr. Robert Ma rcovic h, assisted by

Chief Resident Dr. V ashi, and
un de r t he dir e c tio n o f atte nd ingsurg e on , D r. Stu art Wolf (s inc e the Ce nte r i s a

te a c hin gho sp ita l, Dr . Wo lf , a me mbe r o f t

he Un ive rs ity

of Mic hig an M e dic a l Sc ho ol, ov e rs aw the pr oc e dure but it
wa s p e rf or me d b y the re sid e nts ). Th e do c tor s w e re un a ble to o bs e rv e the so ur c e of Che e se ’s pa in or blood afte r examining both sides of he r urinar y trac t. Whi le Cheese was still under ane sthesia, they decide d that two possible sources of her sy mptoms were c ance r in the urinar y trac t or a kidney disease that would require a biopsy to detect. To te st for ca

ncer , the doctors a dvance d the cathe ter fa

rther up Che ese’ s ureter

and per formed a

washingof the re nal pelvis. This involved injectingsaline solution through the cathe ter, wa iting a f ew minutes, and the n withdrawingthe solution. The salt water r emoves some c ells from the urina ry trac t walls which ca

n then be teste dfor c ance r. The pr ocedur e appe are d to be succ essful at the time, yet when Che ese a woke she was in excruciatingpain on her right side – wher e ther e had be en none pr ior to surg ery . Cheese w as kept over night at the hospital to moni tor her pa in, but Dr. Wolf was not informed of he r condition. The next morning, Apr il 16, despite continuing hig h levels of pa in, she was discharg ed by

Dr. Seifman, a

junior resident. Chee se re turned to the hospital on April 17 whe n her pa in did not subsi de. Dr . Marc ovich orde red f urther te sts which showed that urine was leakingfrom her

kidney , appar ently

from a punc ture that oc curr ed to her rig ht kidney

duringthe operation. They

inserted a

stent later that da

y , which improved he r pain. Chee se then we nt elsewhe re f

or trea tment, havinglost faith in the Center. Another doctor re moved her

stent, but when he r condition deter iorated a g ain, a ne w stent was put in place . Duringexploratory surg ery on J uly 15, the doctor discove red that her kidney had ca lcified a

nd was no long er f

unctional. Whil e Chee se wa s under a nesthesia a

nd with permission from the family , he re moved the kidney
. Che e se wa s e ve ntu a lly

pla c e d o n d isa

bil ity du e to c on tin

uin gpa in f

ro m he r l e ft

sid e – th e pa in that had initially

prompted her

first hospital visit . I t appea rs there is no treatment ava ilable for her pa in since fur

ther proc edure s are too risky with only

one func tioning kidney

rema ining. Cheese sue d the United States under the Fe dera l Tort Claims Act, 28 U.S.C. § 2671 et seq. , for ( 1) per formingrena l washing s without consent, (2) pe rfor ming wa shings whic h wer e
unnece ssary , (3) pr emature ly discharg ing he r whe n she wa s still in pain on April 16, and (4) failingto place the stent to stop the urine leaka g e sooner . On a motion by

the def endants, the district c ourt appointed a n expert witness under F e de ra l Ru le of

Ev ide nc e 70 6 to he lp t

he c ourt e va luate the c omp e tin gme dic a l c la ims . B oth pa rt ie s a g re e d to the a

pp ointme nt o f D r. Ho lla

nd e r. Ho we ve r, a ft e r d e po sit ion , Ch e e se mov e d to disqualify Dr. Hollande r bec ause of alleg ed bias: he ha d previously worke d with Dr. Wolf, whowas involved in the a lleg ed malpra ctice. T he cour t rejec ted the motion, finding that Dr. Hollander ’s knowledg e of D r. Wolf’s reputation and his professional c ontacts with him were i n s u f f i c i e n tt o l e a d

t o r e a s o n a

b l e qu e s t i o n i n go f

D r . H o l l an d e r ’ s i mp art i a l i ty. Duringthe benc h trial, Dr. Hollande r sat with the judg e behind the be nch and pa rticipated in the proce eding s by

askingquestions and providinganswe rs to the judg e’s que stions – som e of them substantive. Cheese’ s attorney asked f or cla rifica tion as to Dr. Hollander ’s role, but ne ver objected to his statements or pa rticipation. After a benc h trial, the cour

t found that the Center

had violated the sta

ndard of car e whe n it d isc ha rg e d Ch e e se on

Ap ri l 16 de sp ite he r c on tin uin ghigh le ve ls o f p a in. Th e c ourt a lso conclude d that this viol ation was the pr ox imate ca use of Chee se’s pa in and suffe ringbetwee n the time of her disc harg e and the time the stent was inserte d. Howeve r, the c ourt found that the violation was not a proximate cause of the loss of her kidney . The c ourt also found that the r enal washing s were part of the retrograde py elog ram, a nd there fore Cheese ha d consente d to the washing s when she c onsented to the re trog rade py elog ram. The court found no othe r violation. Ac c or din g ly , th e c ourt

awa rd e d $ 15 ,0 00 in d ama g e s b a se d o n th e on e da y duri ngwh ic h Ch e e se needle ssly

suffe red, a

nd attorney ’s fe es and c osts. Cheese then f iled this appeal, c laiming that the district court e rre d in denying he r the opportunity to cross examine Dr. Hollande r on the stand, in denying he r motion to disqualify Dr. Hollande r for

bias, in finding that she consente d to washingby

consentingto the retrograde py elog ram, a nd in awar ding da

mag es only

for one day
. II A. Cheese ide ntifies two source s of er ror with re spect to the c ourt’s use of Dr. Hollande r. First, Chee se ar g ues that she wa s denied the oppor tunity to cross-e x amine him in contrave ntionof Rule 706. Fe dera l Rule of Evidence 706 provides for the appointment of e x pert witnesse s by the cour t on its own mot ion or motions of the parties. Sec ond, she ar g ues that Dr. H ollander should have be en disqualified f or bias. As to her

first argument, we c an find nothingin the
rec ord to indicate that she reque sted to cross examine Dr. H ollander at trial. The district cour t
c ann ot h ave de nie d what w a s n ot r e qu e ste d. Th e re fo re , w e re je c t th e pr e mis e of

Che e se ’s fi rs t argument – that she wa s denied the oppor tunity to cross examine Dr. Hollande r. As to h e r s e c on d a

rgume nt –

that D r. Ho lla

nd e r s ho uld

have be e n d isq

ua lif ie d f or bia s – we ha ve found no c ases discussinga re quirement of ne utrality for c ourt appointed e x perts. Assuming, a s would be re asonable , that some neutra lity require ment applies, and a ssuming that the most stringe nt neutrality require ment such an e x pert would fa ce is that a pplied to judge s, we do not find that the district court abuse d its discretion in rejec ting Chee se’s motion to disqualify Dr. Hollande r for

bias. A judg e must rec use her self whe n her impar tiality might re asonably

be questioned, or wh e n s he ha s a

pe rs on a l bi a s o r p re

jud ic e . 2 8 U .S. C. § 45 5. We r e vie w a jud g e ’s de c isi on

no t to
rec use her self for

abuse of discretion. Y

oun v. Track, I

nc. , 324 F.3d 409, 422 ( 6th Cir. 2003). Bia s requiringrec usal requir es more tha n a fa vorable or unfavorable dispositi on toward a n ind ivi du a l. R athe r, it r e su lts fr om a n o pin ion that is wrongful

either be cause it is based on knowledg e the judg e should not possess, or bec ause the opinion is ex cessively strong . In re Tripl e S Re

staurants, Inc
. , 4 2 2 F. 3 d

4 0 5 , 4 1 7 (6 thC i r. 2 0 0 5 ) ( ci t i n g Liteky v. U nited States , 510 U.S. 540, 550 (1994)). The foundation for the alleg ations of bias by Dr. Hollande r is tenuous. Dr. Hollande r (1) speculated that Dr. Wolf might have bee n able to save Cheese’ s kidney had she
rema ined in his care , (2) lea rned a n unrelated technique from Dr . Wolf over the cour se of two day s, and (3) had a r ecipr ocal a g ree ment with Dr. Seifman to see eac h other’s patients forwee kend eme rg encie s. As to Dr. Wolf, the district court conc luded that thoug h Dr. Hollande r

was fa miliar with Dr. Wolf’s reputation, such w as to be e x pecte d g iven their shar ed prof ession, and they wer e not social fr iends or prof essional collea g ues. Ther efor e, Dr . Hollander ’s impartiality

could not rea sonably

be questioned. We c annot say this was an abuse of discre tion g iven the we ak evide nce of an excessively

positive opinion of Dr. Wolf held by Dr. Hollande r, and the lac k of any

extraordinary

connec tion between the two. As to Dr. Seifman, the district court found that his decision to discharg e Chee se wa s a violation of the standa rd of c are , and there fore any

bias Dr. Hollande r mig ht have ha d was not pre judicial to Cheese’ s case . B. Cheese a sks this C ourt to find that the district court’s f actua l findings r elatingto consent
wer e ag ainst the weig ht of the evide nce. We r eview a district court’s fa ctual finding s for c lear
err or. See H

arris v. United States , 422 F.3d 322, 327 ( 6th Cir. 2005). Cheese pr esents thre e specific problems in the trial cour t’s rea soning: (1) that the cour t misst ated testimony

upon which it r e lie d ( 2) that it

fo un d a fa c t in op po sit ion

to t he c ourt -a

pp ointe d e xpe rt

and (3 ) t hat a tr e atis e
se c tio n u po n whic h it

re lie d w a s ta

ke n o ut o f c on te xt. N on e of the se argume nts se ri ou sly undermines our

confide nce in the f

actua l findings of

the district court. Che e se fi rs t argue s th at th e c ourt mis state d te sti mony . T he dis tr ic t c ourt state d th at “ a ll of the doc tors who testified at tria l testified that it is ax iomatic in urolog y that g ross hematuria

– on e of the sy mpt oms Pla int if

f C he e se pr e se nte d –

“ is c anc e r u

nti l pr ov e n o the rw ise .” Che e se points out t hat the testimony of Dr. Cope land was that gr oss hematuria without pain indicated
c anc e r u nle ss p ro ve n o the rw ise , a nd Che e se c omp la ine d o f p a in. Whil e thi s st ate me nt i s tr ue , it do e s n ot d ir e c tly

c on tr a dic t th e su

bs tanti ve thr

us t of the dis tr ic t c ourt ’s state me nt, no r d oe s it challeng e that the other

doctors’ te stimony

supported the c ourt’s conc lusion. Dr. Woodsp e c if

ic a lly state d th at “ pa in o r n o p a in, a s lo nga s it ’s no t an a c tiv e inf e c tio n, it i s c anc e r u

nti l proven othe rwise.” Cheese ne x t argues that the c ourt found a f act in contr adiction to its own ex pert. The court ba sed par

t of its reasoningon a findingthat washing s are a more acc urate test for c ance r than testing urine. Chee se notes that Dr . Hollander , the cour t-appointed e x pert, be lieved that there was no proof

that one method wa s more ac curate than the other . Howeve r, the c ourt’s conclusion is supported by the testimony

of Dr. Wood that voided urine cy tologies a re only 40- 60% ac curate with respe ct to detec ting c ance r, whe rea s rena l pelvic washing s are 100% ac curate. Finally , Cheese a

rgues that the c ourt took a treatise section out of conte x t. The district court c redited the testimony of Dr. Wolf and D r. Wood “that a wa shing is par t and par cel of

a retrograde py elog ram proc edure .” This g oes direc tly to the issue of conse nt. Cheese c halleng es this finding by

arguing that the section of a medical tre atise used to support Dr . Wolf’s testimony was take n out of context. Even if that wer e the c ase, it does little to show that the court wa s clea rly err oneous in believingthe testimony of two medica l experts. We do not find any

clea r er ror in these fac tual finding s of the district cour t as they are supported by

the evidenc e in the re cord. We ther efor e af firm the district cour

t’s conclusion that Cheese c onsented to the wa shings a s part of he r conse nt to the retrograde py elog ram. C. Che e se argue s e xten siv e ly a bo ut t he c a lc ulatio n o f d ama g e s, fo c us ingin p art ic ula r o n lo st future e arning s. Howeve r, the district cour t found that the bre ach of the duty of ca re w as not the proxi mate ca

use of a ny damag es beyond the one da y delay for whic h it awar ded dama g es. Findingno rea son to question the district court’s opinion reg ardingproxi mate ca use, we aff

irm its decision not to award f urther da mag es.III

For the fore g oing r easons, we AFF I RM the decision of the district cour t.