Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ROBERT MELBER,

Plaintiff

Civil Action No. 11-3510

v.

OPINION

UNITED STATES OF AMERICA,

Defendant.

John Michael Vazguez, U.S.DJ.

This Federal Tort Claims Act (the “FTCA”) case arises out of Plaintiff Robert Melber’s

ophthalmologic care while a patient of the Department of Veterans Affairs New Jersey Health

Care System (the “VA”). Plaintiff filed the instant action in New Jersey state court against

Neelakshi Bhagat, M.D.; Keegan Johnson, M.D.; Scott M. Walsman, M.D.; Amir Cohen, M.D.;

Jung S. Lee, M.D., and John Doe Defendants. At the time of the relevant events, Drs. Johnson,

Walsman, and Lee were employed by the VA. On June 17, 2011, the United States substituted

itself as the Defendant for the three physicians and removed the matter to this Court. See Amended

Notice of Removal and Substitution of Defendant ¶ 2, 5; D.E. 2. Drs. Bhagat and Cohen, who

were not federal employees at the time in question, were dismissed from this action on March 28,

2012. D.E. 31. Thus, the United States is the sole Defendant.

Claims asserted pursuant to the FTCA are tried without a jury. See 28 U.S.C. § 2402,

Accordingly, there was a five-day bench trial between April 1 and 10, 2019. The trial consisted

of witness testimony and exhibits; the parties also had a hill opportunity to examine and crossexamine the witnesses as well as present their arguments. After consideration of the record, the
following are the Court’s findings of fact and conclusions of law pursuant to Federal Rule of Civil

Procedure 52(a).

I. FINDINGS OF FACT’

This medical malpractice matter focuses on retained lens material in Melber’s right eye

following cataract surgery. Colloquially, the human eye is divided into two sections: the anterior

segment, which is the front of the eye, and the posterior segment, which is the back of the eye.

The anterior segment includes the iris; lens; cornea, which is a transparent covering over the iris

and lens; and the visible white section ofthe eyeball, called the sclera. Tr. Vol. 3 at 247:22-248:17.

The lens consists oftwo major components. Nuclear lens material, found in the center of the lens,

is hard and looks yellowish. The remainder of the lens is called the cortex. Cortical material is

softer and looks white. Id. at 273:13-17.

The posterior section of the eye is filled with a jelly-like substance called vitreous. Id. at

248:18-25. The posterior section also consists of a very thin membrane called the retina, which

lines the interior of the eye. The retina is analogous to film in a camera; images are projected

through the lens onto the retina and that information is then transferred to the brain through the

optic nerve. The macula is the small, center portion of the retina. The macula is the part of the

retina that allows a person to see details and clearly. Id. at 249:7-15. The fovea, in turn, is at the

center ofthe macula. Tr. Vol.2 at 151:16-19.

Here, Melber suffered a macula-off detached retina in his right eye. After his retina

surgery, Melber developed a cataract. Melber then had a second surgery to remove the cataract,

The underlying facts are largely not in dispute. Instead, the parties’ contest the proper inferences

to be drawn from those facts.

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and following that surgery, lens material remained in Melber’s right eye. The retained lens

material, and its impact on Melber’s vision, is the central focus of this case.

A. Stipulated Facts

The following undisputed facts were set forth in the stipulation of facts section of the Final

Pretrial Order (“Stipulated Facts”). D.E. 108. Plaintiff Robert Melber, a Navy veteran, was a

patient of the VA for many years. Stipulated Facts ¶ 1. Melber began noticing symptoms of

blurred vision in his right eye on May 2,2009, and went to the VA’s non-urgent clinic for treatment

on May 4. Id. ¶ 2-3. On May 5, 2009, Plaintiff was seen by Drs. Jung S. Lee, M.D.. and Scott

Walsman, M.D.. at the VA Ophthalmology Clinic. During the appointment, Melber stated that he

could not see out of his right eye and his visual acuity for the right eye was measured at “counting

fingers.”2 Id. ¶ 4. Melber’s visual acuity for his left eye was 20/20. Id. Melber was diagnosed

with a chronic retinal detachment in the right eye, which had progressed to involve the maeula.

Melber also had mild cataracts in both eyes. At this appointment, Dr. Lee explained to Melber

that surgery to repair his detached retina may not improve the vision in his right eye because the

macula was detached. Id.

On May 11, 2009. Melber met with Dr. Neelakshi Bhagat, M.D., arid resident Dr. Keegan

Johnson, M.D.. at the VA. Id. ¶ 5. Dr. Bhagat explained the benefits and risks ofsurgery to repair

the detached retina, including a decrease in vision, the need for repeated surgery, and the

progression of cataracts. Understanding the risks, Melbcr decided to have the surgery. Id. Drs.

2 Visual acuity, as explained during the trial, refers to the clarity of vision. Most commonly, acuity

is tested through an eye chart. 20/20 vision means that the person can clearly see the eighth line

of the chart from twenty feet. 20/200 vision means that the person can only see the top line of the

chart, which is commonly a large “E.” Tr, Vol. 2 at 156:22-157:4. When a person’s vision cannot

be calculated by reference to the eye chart, physicians determine whether the person can “count

fingers,” i.e. the physician’s fingers, and at what distance, such as 2 or 5 feet. When a person’s

visual acuity is counting fingers, his acuity is worse than 20/200.

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Bhagat and Johnson performed the surgery the same day. lntraoperatively, Drs. Bhagat and

Johnson again diagnosed Melber with a macula-off retinal detachment in the right eye in addition

to a retinal tear. Id. There were no complications during the surgery, and Melber was in stable

condition and discharged following the procedure. Id.

Dr. Amir Cohen, M.D., examined Melber in the VA Ophthalmology clinic the following

day, May 12, 2009. Id. ¶ 6. Melber’s vision in his right eye was limited to hand motions (which

is worse than counting fingers), and Dr. Cohen noted that Melber’s cataract had worsened. Id.

Melber had additional post-operative appointments on May 13 and 14, 2009. Id. ¶J 7-8. On the

May 13 visit, the examining doctors confirmed that Melber’s retina had successftflly been

reattached during surgery. Id. On May 14, 2009, a B-scan ultrasound of the right eye “showed

findings consistent of a progressive cataract.” Id. On both days, however, Melber’s vision

remained at hand motions, and the pressure in his right eye was low. Id. Drs. Bhagat and Walsman

examined Melber at the VA Eye clinic on May 18, 2009. Melber’s vision remained at hand

motions, and he still had low intraocular pressure. Id. ¶ 9. Drs. Bhagat and Waisman performed

another B-scan ultrasound, which showed choroidal detachment. Id.

Melber was then scheduled for a second surgery on his right eye: a cataract extraction3

and placement of a sulcus intraocular lens. Id. On June 8, 2009, Drs. Cohen and Walsman

perfonned the surgery. Id. ¶ 11. On June 9, 2009, one day after the cataract surgery, Drs. Cohen

and Walsman examined Melber. “It was noted that [Melber] had a small amount of retained

cortical lens material in the right eye.”4 Id. ¶ 12. Dr. Walsman examined Melber during a followThe parties agree that the development, or worsening, of a cataract is common complication of

retina surgery.

The parties do not appear to dispute that nuclear, rather than solely cortical, lens material was

actually in Melber’s right eye following the second surgery. Dr. Cohen indicated that when

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up visit on June 12, 2009, and again noted a small amount of retained cortical material in Melber’s

right eye. Id. ¶ 14, On June 19, 2009, Drs. Lee and Walsman examined Melber during a followup visit at the VA Ophthalmology Clinic. During this visit, Drs. Lee and Walsman noted that the

retina was attached but there was a decreased view of the posterior section of Melber’s right eye

due to comeal swelling. Id. ¶ 15. Drs. Lee and Walsman also saw a small amount of retained

cortical material. Id. “The recommendation was to allow time to clear the inflammation and to

schedule a follow-up visit in two [to] three weeks to allow time for comeal swelling to resolve and

allow improved visualization of the retina.” Id.

On July 20, 2009, Melber had a follow-up appointment with Dr. Bhagat. At this time,

Melber’s visual acuity had improved and was approximately 20/200 in the right eye. Id. ¶ 16.

During her examination. Dr. Rhagat saw an “[i]nferiorly dislocated large cataract piece.” Id. Dr.

Bhagat noted that the retained cataract fragment “?? Looks nuclear + cortical.” Id. Dr. Bhagat

also indicated that there was mild vitreal inflammation. Id. Dr. Bhagat wrote that Melber should

follow up in one month, and “if still unchanged, [he] may need to consider PPV/PPL (surgical

procedures to remove cataract fragment)”. Id.

Dr. Lee saw Melber at a follow-up appointment on August 3, 2009. Melber’s visual acuity

was measured at 20/200 and during his examination, and Dr. Lee confirmed that the retained lens

material was still in Melber’s right eye. Dr. Lee noted that the retina was flat (meaning in place)

performing the cataract surgery, it appeared that the nucleus of the lens had liquified, meaning that

it did not have to be removed because it was no longer present in solid form. No other medical

expert supported this view.

Although the parties stipulated to the fact that the visual acuity in Melber’s right eye was 20/200

on August 3 the trial testimony reflects otherwise, And as will be discussed, Melber’s visual acuity

on August 3 is a key piece of evidence in this trial. As a result, the Court notes that according to

the trial testimony and record evidence, Melber’s visual acuity was measured at counting fingers

and his pinhole acuity was 20/400.

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and diagnosed Melber as having an epiretinal membrane in his right eye. Id. ¶ 17. Dr. Lee

recommended that Melber return for a follow-up visit on August 17, 2009. Id.

Melber did not follow-up with any doctor at the VA. Instead, on August 24, 2009, Melber

saw Dr. Michael Harris, M.D., a private ophthalmologist with Retina Associates of N.J., P.A. Id.

¶ 18. Dr. Harris examined Melber and determined that there were “retained nucleus fragments” in

his right eye, an epiretinal membrane, and “evidence ofmacular edema associated with the retained

lens material.” Id. ¶ 18. Edema refers to swelling. Dr. Harris recommended removal of the

retained lens material “in hopes of eliminating the edema” but noted that “the amount of visual

recovery will be limited due to the fact that the retinal detachment has been present for several

weeks prior to its surgical repair.” Id. Approximately three weeks later, on September 16, 2009,

Dr. Harris performed Pars Plana Vitrectomy/Lensectomy (“PPV/PPL”) surgery on Melber’s right

eye to remove the retained lens material and the epiretinal membrane. Id. ¶ 19.

At a post-operative follow-up with Dr. Harris on September 21, 2009, Melber’s visual

acuity was measured at 20/150. Id. ¶ 21. Melber, however, still had macular edema in his right

eye. Id. On October 5, 2009, Melber’s visual acuity had worsened and was measured at 20/400.

In addition, the macular edema was still present. Id. ¶ 22. Melber’s condition was unchanged at

an October 19,2009 appointment. Id. ¶ 23. At a November 16, 2009 appointment, Melber’s visual

acuity had improved to 20/150. The macular edema had also improved. Id. ¶ 24.

Melber continued to be treated by Dr. Harris’ practice over the next several years. Melber

received periodic steroidal injections and, at times, his vision in the right eye and the macular

edema appeared to improve. For example, at a January 4, 2010 appointment with Dr. Harris,

Melber’s visual acuity was “stabilized at 20/800 in the right eye.” Id. ¶ 28. In addition, Dr. Harris

noted that there was “a mild amount of edema” but it was “not severe enough to explain the acuity.”

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Id. Dr. Harris indicated that Melber’s vision loss “was more related to damage from the original

retinal detachment, rather than the macular edema.” Id. On September 13, 2010, Dr. Harris found

no evidence of macular edema and Melber’s vision in his right eye was measured at 20/150. Id. ¶

35.

Despite these periodic improvements, the overall condition of Melber’s right eye ultimately

worsened. On December 13, 2010, Melber’s visual acuity was measured at 20/400 and Dr. Harris

“found that the right eye macular edema had returned along with a prominent epiretinal

membrane.” Id. ¶ 37. At a February 14, 2011 appointment, Dr. Harris determined that Melber

continued to have macular edema in the right eye with vision at finger counting at five feet. Id. ¶

39. On May 23, 2011, Dr. Harris found that in addition to the epiretinal membrane, Melber’s right

eye had subretinal fluid beneath the right fovea along with intraretinal cystic edema. Id. ¶ 40. On

September 22, 2014, Melber’s visual acuity was counting fingers at three feet in his right eye and

20/20 in the left eye. Id. ¶ 45. During an examination, Dr. Harris noted evidence of recurrent

epiretinal member and macular edema in the right eye. Dr. Harris noted that Melber’s “right eye

vision has been at this level for many years and no additional treatment is required at this point.”

Id.

B. Trial Testimony

At trial, the Court heard testimony from the following witnesses: Robert Melber; Michael

Melber, Plaintiffs son; Dr. Harris (by way of video deposition), a vitreoretinal surgeon and

Plaintiff’s treating physician after the VA; Dr. Harvey Rosenblum, a general ophthalmology and

anterior segment surgery specialist and Plaintiffs liability expert; Dr. Bhagat, a vitreoretinal

surgeon and one of Plaintiffs treating physicians at the VA; Dr. Cohen, a glaucoma specialist and

one of Plaintiffs treating physicians at the VA; Dr. Lee, the head of ophthalmology at the VA

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during the events at issue, an anterior segment surgery specialist, and one of Plaintiffs treating

physicians at the VA; and Dr. Mitchell S. Fineman, a vitreoretinal surgeon and Defendant’s

liability expert.

Plaintifftestified first. Melber is retired and a veteran ofthe United States Navy. He served

for approximately one year and was discharged in 1960 due to a medical condition. Tr. Vol. 1 at

33:23-24:12. At his deposition, Melber indicated that he was discharged because of paresthesia of

the right lower mandible. At trial, however, Melber added that his discharge was also due to falling

arches. Id. at 98:6-22. Melber received medical disability upon discharge, which he continues to

receive to this day. Id. at 35:10-14.

At trial, Melber’s testimony was at times materially different from the parties’ stipulated

facts and his deposition testimony. First, as indicated above, in the Final Pretrial Order, the parties

stipulated that Melber first experienced blurred vision on May 2, 2009 and was seen at the nonurgent clinic at the VA for his poor vision on May 4, 2009. Stipulated Facts ¶N 2-3. The following

day, May 5, 2009, Melber met with Drs. Lee and Walsman in the VA Ophthalmology Clinic. Id.

¶ 4. At trial, Melber insisted that he first suffered blurred vision on April 27, 2009 (Tr. Vol. 1 at

53:2-5) and that he saw Dr. Walsman in VA Ophthalmology Clinic that same day (Id. at 55:7-24;

56:22-57:3). The Court credits Melber’s trial testimony regarding when he began noticing

symptoms of the detached retina but not his statements that he was examined by Dr. Walsman on

April 27. The record evidence indicates that Melber was not seen in the Ophthalmology Clinic

until May 5, 2009, as the parties previously stipulated. See Ex, A; Stipulated Facts ¶ 4.

In addition, at his deposition, Melber stated that he did not meet with any VA doctor on

August 3, 2009, and that no follow-up appointment at the VA was scheduled after the August 3

appointment. Tr. Vol. 1 at 76:12-77:25. At trial, however, Melber explained that he did meet with

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Dr. Lee on August 3 and that during this appointment, Dr. Lee told him to come back to the VA

in two weeks for a follow-up. fri. at 45:10-17; 78:13-79:1. Instead of returning the VA, Melber

decided to seek a second opinion from a doctor outside of the VA. Id. at 46:21-47:3. Again,

Melber’s trial testimony contradicts earlier statements made during his deposition, and the Court

credits Melber’s trial testimony as it is also consistent with the record evidence.

After his August 3 appointment at the VA, Melber testified that he attempted to meet a Dr.

Higgins at Belleville Hospital the same day but was unsuccessful. Id. at 47:2-5. Approximately

two weeks later, Melber went to a Dr. Marone in North Arlington, New Jersey. Dr. Marone

examined Melber and told Melber that the “large piece” needed to “come out” but that Dr. Marone

was not to correct person to perform the surgery. Id. at 47:8-49:3. On August 24, 2009, Melber

met with Dr. Harris. Id. at 48:22-49:5. Dr. Harris treated Melber for multiple years. Melber

testified that he has been a patient of Dr. Harris for ten years (id. at 49:24-25), although the Court

notes that Melber’s first appointment with Dr. Harris was in 2009 so the ten-year anniversary has

not yet occurred.

Melber stated that he now has permanent vision loss in his right eye. Melber testified that

with his right eye he can see light, “but it’s a blur,” and that he can see his hand ifhe holds it close

to his face, Id. at 50:7-12. Melber explained that since 2009, he can no longer read or drive,

perform many household tasks, and that going up and down stairs is difficult. Id. at 51:7-25. As

a result of his vision loss, Melber testified that he has to rely on his adult son daily to perform

essentially all household tasks and drive Mclber as needed. Id. at 50:21-51:2. The Court also

heard testimony from Melber’s son Michael regarding the limitations Plaintiff now faces because

of the vision loss in Plaintiffs right eye.

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The remaining testimony came from multiple medical professionals. Every doctor that

testified is board certified in ophthalmology. There are sub-specialties of ophthalmology although

none are recognized for board certification purposes. Generally, the ophthalmologists who

testified specialized in either the anterior, i.e. front, or posterior, i.e. the back, of the eye. Drs.

Harris, Bhagat, and Fineman are vitreoretinal surgery specialists, which pertains to the posterior

of the eye. Drs. Rosenblum, Cohen and Lee, focus on the anterior segment of the eye.

The nuclear retained lens material in Melber’s right eye is at the heart of this case. Retained

lens material or fragments (“RLF”) refers to material that remains in the vitreous of the eye

following cataract surgery. The parties agreed that cortical material, at least if it is not too large,

most ofien does not require surgical removal because it will naturally reabsorb into the body. The

parties also agreed that nuclear material, at least if it is sufficiently large, must be removed

surgically because it will not reabsorb into the body. A nuclear RLF can lead to inflammation,

which in turn, can lead to macular edema.6 Macular edema is leakage from blood vessels in the

retina that accumulates in the macula and causes swelling. Macular edema can lead to the loss of

visual acuity.

The disagreement in this case is when the standard of care called for the nuclear RLF to be

removed. A related issue is whether Defendant violated the standard of care by not conducting

certain tests on August 3,2009, that would have confirmed the size and type ofthe RLF in Melber’s

right eye. The pertinent views and opinions of the medical professionals are discussed in the

analysis section below.

6 The medical professionals also all appear to agree that surgery to repair a macular-off retinal

detachment alone can cause macular edema, and that cataract surgery alone can cause macular

edema.

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II. CONCLUSIONS OF LAW

A. Applicable Law

As discussed, this matter is governed by the FTCA, which “provides a mechanism for

bringing a state law tort action against the federal government in federal court.” Lomanclo v.

United States. 667 F.3d 363. 372 (3d Cir. 2011). Under the FTCA. the United States may be liable

“for the tortious actions ofits employees.” fi/L at 374. Specifically. the United States is responsible

for injuries caused by the “negligent or wrongful act or omission of any employee of the

Government while acting within the scope of his [federal) employment.” 28 U.S.C. § I 346(b)( 1);

§ 2679(a). Here. Plaintiff interacted with multiple doctors at the VA but Drs. Bhagat and Cohen

wcre contractors at the VA Medical Center in East Orange. Tr. Vol. 3 at 250:24-251:7; 353:20-

25. Only Drs. Lee, Walsman, and Johnson were VA employees in 2009, when the events giving

rise to this matter occurred. Consequently, the United States is only responsible for the conduct

of Drs. Lee, Walsman, and Johnson. Lomando, 667 F.3d at 374.

In addition, the United States is only liable under the FTCA “to the extent that a private

employer would be liable in similar circumstances in the same locality.” Lomando, 667 F.3d at

373 (citing 28 U.S.C. § I 346(b)( 1)). Thus, the law ofthe place where the act or omission occurred

sets the standard for liability. 28 U.S.C. § 1346(b). Because the acts here occurred in New Jersey,

New Jersey substantive law applies. Loniando. 667 F.3d at 373. Accordingly. to prevail against

the United States, Plaintiff must prove the elements of a medical-malpractice claim under New

Jersey substantive law.

A claim for medical malpractice “is a kind oftort action in which the traditional negligence

elements are reined to reflect the professional setting of a physician-patient relationship.”

Verdicchio v. Ricca, 179 N.J. 1. 23 (2004). Pursuant to New Jersey law, a plaintiff “must prove

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the applicable standard of care; that a deviation has occurred; and that the deviation proximately

caused the injury.” Id. Moreover, a plaintiff usually must present expert testimony to prove each

element ofa medical malpractice claim. Mud/na i. P/na, 442 N.J. Super. 1,25 (App. Div. 2015).

B. Deviation from the Standard of Care and Proximate Cause

Plaintiff argues that Dr. Lee deviated from the standard of care on August 3, 2009 and that

this deviation proximately caused Plaintiff’s injuries. Plaintiff also contends that Dr. Harris acted

appropriately and did not breach any standards of care on August 24, 2009 or anytime thereafter.

As a result, the relevant time frame for Defendant’s liability is limited to August 3 through August

23 meaning that Plaintiffs theory of the case is that Defendant should have performed

appropriate tests and performed surgery to remove the RLF within this approximately three-week

period. Defendant contends that the actual time frame is August 3 to August 17, 2009, when

Plaintiff voluntarily missed his follow-up appointment at the VA. Although Defendant makes a

fair point, whether the end-date for liability is August 17 or August23 does not change the Court’s

analysis.

I. Plaintiffs Proof of Liability and Proximate Cause

The Court first reviews Plaintiffs case-in-chief, specifically, the testimony of Drs.

Rosenblum and Harris. Plaintiff argues that the applicable standard of care here dictates that a

large, nuclear RLF must be surgically removed because it will not reabsorb into the eye. Again.

the United States does not dispute this point. Instead, the critical question is when such material

needed to be removed in light of Melber’s condition.

Dr. Rosenblum. Plaintiffs liability expert. opined that Defendant breached the standard of

care on August 3 because Dr. Lee should have scheduled surgery on this date. Tr. Vol. 2 at 170:14-

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25. Dr. Rosenbium’s opinion assumes that “significant” macular edema7 had developed in

Melber’s right eye and was “well established” by August 3. RI. at 172:5-8: 195:2-7. When asked

how quickly surgery should occur once macular edema is recognized, Dr. Rosenbium said that

“there’s a range of dates” when surgery would be appropriate but that it is “a judgment call based

on the previous history.” Id. at 195:8-15. Dr. Rosenblum continued that here, surgery’ should have

been performed days, not weeks or months, after August 3. Id. 195:11-13. Dr. Rosenblum added

that the ultimate decision as to when surgery should occur is left to a posterior segment surgeon

(such as Dr. Harris, Dr. Bhagat, or Dr. Fineman). Id. at 192:20-193:3. Thus, viewing Plaintiffs

evidence generously, Plaintiff established through expert testimony that the applicable standard of

care requires that once macular edema is diagnosed by an anterior segment surgeon. RLF must be

removed within a matter of days.

Dr. Rosenblum. however, failed to adequately explain how or if Melber’s right eye would

have improved had surgery been scheduled on August 3 or shortly thereafter. Rather, Dr.

Rosenblum only generally opined that “had the surgical intervention been accomplished earlier,

that a significant amount of vision in approximately the range of2O/200 would have been retained

in the long term.” Id. at 217:5-10, But it is entirely unclear what constitutes “earlier” in Dr.

Rosenblum’s opinion. As noted, Plaintiffs theory of the case is that the surgery to remove the

RLF should have occurred on or after August 3 but before August 24, when Dr. Harris saw Melber.

In other words, Plaintiff needed to produce evidence that, within a reasonable degree of medical

certainty, if Plaintiff had the necessary surgery on or after August 3 but before August 24,

Dr. Rosenblum’s opinion that macular edema had developed by August 3 was based on his review

of the medical records on that day when compared with the records on July 20. This comparison,

along with the other medical opinions concerning the difference between July 20 and August 3,

are discussed below.

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Plaintiffs visual acuity in his right eye would be better than it currently is. Yet, Plaintiffs proofs

in this regard were ambiguous as Dr. Rosenblum never addressed the August 23 end date.

More importantly. Dr. Rosenbium’s expert testimony is undern-tined by the testimony of

Dr. Han-is, who was “the best witness in the entire case” according to Plaintiffs counsel.8 Tr, Vol.

5 at 675:9-Il. As noted, Dr. Harris was Plaintiffs treating physician for a number of years

beginning in August 2009, and Plaintiff relied on Harris at trial. When asked why he did not

schedule emergency surgery afler examining Plaintiff on August 24, Dr. Harris replied that by that

date, damage from the macular edema had already occurred. Dr. Harris testified as follows:

[A]t that point, [the RLF] had already been in the eye for three

months, so a delay of another two weeks I don’t think would make

a substantial difference. Had we been able to remove it within the

.flrst couple weeks fier his cataract surgety, I think we may have

made a difference.

Harris Dep. at 11:15-20 (emphasis added). Dr. Harris added that the length of time that RLF

remains in the eye, as opposed to the size of the fragments, is critical. Dr. Harris stated that “[t]he

longer that the lens material is in the eye the more likely the edema will be recalcitrant to therapy.”

Id. at 111:4-7.

As discussed, Plaintiffs cataract surgery occurred on June 8. Stipulated Facts ¶ 11. This

means that conservatively, according to Dr. Harris, Melber should have had surgery to remove the

RLF by the end ofJune. But Dr. Rosenblum opined that Defendant did not breach the standard of

At closing, Plaintiffs counsel explained that Dr. Harris’ testimony was not offered to establish

the applicable standard of care. Instead, as Plaintiffs treating physician, Dr. Harris was presented

to discuss Plaintiffs injury, diagnosis, and prognosis. Tr. Vol. 5 at 673:11-23. Although Dr.

Harris was qualified as an expert, the Court accepts Plaintiffs representation. But as discussed,

Dr. Harris’ treatment of Plaintiff and his testimony undercuts Plaintiffs case as to the applicable

standard of care and highlights the fact that Plaintiff does not establish proximate cause through

expert testimony. Again, in this section, the Court is merely focusing on Plaintiff’s case-in-chief

without consideration of Defendant’s evidence.

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care until August 3, approximately one month later. Thus, if the Court credits Dr. Harris’

testimony then by definition, Dr. RosenNurn’s expcrt testimony fails to establish proximate cause

because even if there was a deviation on August 3. it did not cause Melber’s injuries as any damage

from the RLF had already occurred. Thus. bascd on the critical, conflicting evidence of Plaintiffs

case-in-chief, the Court finds that Plaintiff has not carried his burden.

In sum, the Court finds that Plaintiff failed to carry his burden of establishing proximate

cause.

2. Alternate Finding as to Liability and Proximate Cause

Alternately, the Court finds that Defendant’s evidence as to the standard of care, deviation

therefrom, and proximate cause is more credible.

When RLF is present, “the cornea needs to be sufficiently clear such that surgery [to

remove the fragmentsl can be performed and the lens material removed safely.” Harris Dep. at

113:18-24. But after eye surgery, regardless of whether there is RLF, the cornea can be hazy or

cloudy which makes it difficult for a doctor to see into the eye. Id. at 112:14-113:7. Here, the VA

records note that Melber had corneal edema, or swelling, following his June 8 glaucoma surgery.

See Exhibit A at 55 (June 9 progress report); 53 (June 19 progress report). Drs. Cohen and

Walsman identified retained conical material during these appointments but noted that there was

a decreased view to the posterior section of Melber’s eye due to the cornea. Id.

The view into Melber’s cornea did not clear until his appointment with Dr. Rhagat on July

20. At this appointment, Melber’s visual acuity was measured at 20/200 and it did not change

when corrected with a pinhole. Id. at 49. A pinhole is a rudimentary way to correct refractive

errors; it “is the measure of one’s corrected vision.” Harris Dep. at 72:6-7; 73:1-2. Pinhole acuity

takes away extraneous issues caused by the cornea or lens and measures what the retina can see as

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ifthe cornea and lens did not exist. Tr. Vol. 4 at 545:18-546:5. A pinhole test corrects for cornea)

swelling. Tr. Vol. 3 at 283:6-10. In other words, the pinhole exam is a better test of a person’s

visual acuity vis-à-vis the retina.

During her exam on July 20, Dr. Bhagat saw a large, inferiorly located RLF that “‘?? looks

nuclear + cortical.” Ex. A at SI. Dr. Bhagat testified that her notation ‘1? Looks nuclear” meant

“the possibility there may be a nuclear component” to the RLF and “+ cortical” means that the

material was “definitely cortical.” Tr. Vol. 3 at 286:14-17. In addition, Dr. Bhagat indicated that

there was “mild vitreal inflammation” in Plaintiff’s right eye. Ex. A at 51. Dr. Bhagat also did

not see any signs of macular edema. Tr. Vol. 3 at 298:11-16. She noted that the thndus was flat

and that a fovea] light reflex (“FLR”) was present in Melber’s right eye. Id. at 339:2-3. FIat is a

positive indication, meaning that the reattachment of the retina was successful. As to the FLR. the

fovea is the center of the maeula, as noted above. The testiing medical professionals appeared

to agree that macular edema is not present if there is an FLR. See, e.g., Tr. Vol. 4 at 546:20-25;

see also Tr. Vol. 2 at 189:12-14. Thus, as of July 20, there was not macular edema in Melber’s

right eye.

Dr. Bhagat continued that even if she had observed signs of macular edema on July 20, it

would not be an indication for emergency surgery. In her opinion, if macular edema was present,

surgery could have occurred in the next two to three weeks. Tr. Vol. 3 at 298:22-25. Finally, the

July 20 progress note states that Melber should follow-up within one month, and “if still

unehange[d], may need to consider PPV/PPL.” Ex. A at 51. The PPV/PPL are surgical procedures

(ultimately performed by Dr. Harris) to remove RLF. Dr. Bhagat explained that at the one-month

follow-up she would have examined Melber, and if the REt “still seemed pretty big and [she] did

16
not think that the body had started to absorb the particles in the intervening month . . [she] most

likely would have scheduled surgery.” Tr. Vol. 3 at 297:22-298:5.

Melber returned to the VA Ophthalmology clinic for an appointment on August 3 and met

with Dr. Lee. At this appointment, Melber’s visual acuity for the right eye was measured at

counting fingers but when corrected with a pinhole, measured at 20’400. Ex. A at 47. Dr. Lee

explained that the change from 20/200. Melber’s visual acuity on July 20, to the pinhole visual

acuity of 20/400 on August 3 amounted to a one-line difference on an eve chart. Tr. Vol. 4 at

504:13-16. As noted, the pinho]e exam provides a better indication of visual acuity as to the retina.

During the slit lap exam, Dr. Lee observed superficial punctate keratitis (“SPK”) on the right

cornea. lii at 465:5-10; Ex. A at 47. SPK is a sign that the cornea is irritated, and in Dr. Lee’s

opinion, was most likely caused by medication. Tr. Vol 4 at 465:11-17. SPK can lower a patient’s

visual acuity. Id. at 465:18-20. In addition, Dr. Lee determined that Melber had very low pressure

in his right eye.’ Id. at 464:11-24; Ex. A at 47. Low pressure “can blur the vision and cause a

decrease in vision.” Tr. Vol.4 at 465:1-4. Dr. Lee also diagnosed Melber with having an epiretinal

membrane, which is a thin film that develops over the retina. Id. at 465:24-466:14; Ex. A at 48.

An epiretinal membrane can also distort a patient’s vision. Tr. Vol. 4 at 466:10-14. Finally, Dr.

Lee noted that during his exam he had a decreased view to the posterior segment of the eye, Ex. A

at 48. which was likely caused by the SPK, Tr. Vol. 4 at 550:1 7-19.

Dr. Rosenblum opined that the standard of care dictates that because of the change in

Melber’s visual acuity on August 3 (from July 20), Dr. Lee should have performed diagnostic tests

to detect the presence of macular edema as well as to determine the size and type of the RLF. Tr.

‘1 Because Melber’s eye pressure was so low, Dr. Lee instructed Melber to stop taking Cosopt, a

medication that is used to lower eye pressure. Dr. Lee determined that the Cosopt “was working

too well” in this case Tr. Vol.4 at 464:18-24.

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Vol. 2 at 172:6-23. Dr. Rosenblum testified that Dr. Lee should have performed a fluorescein

angiogram or an ocular coherence tomography (“OCT”) scan to figure out why there was a

“substantial” drop in visual acuity between July 20 and August 3. Tr. Vol.2 at 165:9-166:12. An

OCT scan, which appears to be a minimally invasive test, results in a photograph of the cross

section of the macula and indicates whether there is swelling, lit at 165:21-24. A fluorescein

angiogram can show if there is leakage from blood vessels in the eye. Id. at l66:5-l2i° While

not explained in detail, Dr. Rosenblum appeared to opine that had an OCT scan or angiogram been

perfon-ned on August 3, macular edema would have been detected. Had macular edema been

detected, Dr. Rosenblum seemed to indicate, Dr. Lee would have known to schedule Plaintiffs

PPV/PPL surgery. The Court discusses this testimony, and Defendant’s evidence in response,

below.

Using the uncorrected visual acuity measurements, Dr. Rosenblum determined that Melber

had a “substantial” or “dramatic” change in visual acuity from July20 to August 3. Id. at 164:13-

15; 165:1-2. Uncorrected, Melber’s visual acuity dropped from 20/200 to counting fingers.

Compare Ex. A at 49 with Ex. A at 47. Dr. Rosenblum testified that in light of this dramatic

change, Dr. Lee should have performed a fluorescein angiogram or OCT scan to ascertain why the

change occurred. Tr. Vol.2 at 165:9-166:12. Thus, according to Dr. Rosenblum, Dr. Lee’s failure

to perform the diagnostic tests led to a delay in identifying the macular edema and in removing the

To perform a fluorescein angiogram, fluorescein dye is injected into the patient’s arm. The dye

enters the blood stream and travels to blood vessels located in the back of the patient’s eye. As

this occurs, a technician takes photographs of the eye using a camera with a special filter. From

the photographs, an ophthalmologist can see the flow of the dye through the blood vessels in the

retina. A fluorescein angiogram will show if blood vessels in the retina are abnormal or leaking.

Harris Dep. at 19:20-20:6.

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RLF. Dr. Rosenbium opined that this delay “was the proximate cause for ongoing macular edema

and eventually permanent loss of vision in [Melber’s] right eye” lit, at 174:1-7.

Dr. Rosenbium vigorously pointed to the drop in visual acuity between July20 and August

3 as proof that macular edema developed in Melber’s right eye during this time.’’ As discussed,

Dr. Rosenblum used Plaintiffs uncorrected visual acuity rather than his pinhole acuity on August

3. The Court, however, credits Dr. Fineman’s testimony that pinhole acuity was a more accurate

assessment because it provided the best information as to visual acuity vis-à-vis the retina, which

is what macular edema would have impacted. Dr. Harris also explained that pinhole acuity is often

a better measurement tool because it gives an estimate of a patient’s best corrected Harris

Dep. at 73:1-12. Thus, using pinhole acuity, Melber’s vision went from 20/200 on July 20 to

20/400 on August 3. This is a relatively slight decrease that amounts to about a one-line difference

on the standard eye chart. Not only was the change in acuity relatively minor but Drs. Bhagat,

Lee, and Fineman credibly explained that the epiretinal membrane could account for the drop in

uncorrected visual acuity. See, e.g., Tr. Vol 4 at 551:14-20. These medical professionals also

testified that the SPK and low pressure could have also caused Melber’s decreased uncorrected

visual acuity on August 3 but these causes are factored out with the pinhole test. See Tr. Vol. 4 at

551:13-17. In sum, the pinhole exam, which tested the visual acuity of the retina, on August 3

showed only a slight drop in Melber’s acuity from July 20 to August 3. Moreover, as to the

Drs. Fineman, Harrison and Bhagat testified that there was no evidence of macular edema in the

VA records. Tr. Vol 4 at 543:25-544:26; Harris Dep. 45:7-Il; Tr. Vol.3 at 298:1 1-16. And even

Dr. Rosenblum himself admitted to the fact that he was speculating that macular edema was present

on August 3. Tr. Vol. 2 at 216:21-217:4.

2 Dr. Harris was not asked to opine on Dr. Lee’s treatment on August 3. As a result, he did not

discuss Plaintiffs decline in visual acuity between July20 and August 3.

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difference in Melber’s uncorrected acuity, the evidence established that there were credible

explanations for the drop, that is, the epiretinal membrane, the SPK, and the low eye pressure.

As for Dr. Lee’s failure to perform an angiogram or OCT scan, Drs. Rhagat, Lee and

Fineman testified that neither test was medically indicated at the time. Tr. Vol. 3 at 295:16-296:6;

Tr. Vol.4 at 511:5-7; 554:18-20. Although Dr. Harris did not specifically comment on the issue,

he did state that “[i]fthe cornea’s too hazy, then neither an OCT scan nor a fluorescein angiogram

can be performed.” Harris Dep. at 45:12-16. The reason for this is that the physician cannot

adequately see into the eye. Even Dr. Rosenblum agreed that these diagnostic tests cannot be

performed when the cornea is too hazy. Tr. Vol. 2 at 190:13-15. In addition, had Dr. Lee

perfornwd an angiogram or OCT scan because they were medically indicated, and macular edema

was diagnosed (as Plaintiff assumes), Dr. Lee credibly testified that it would not have changed his

course of treatment.’3 Tr. Vol.4 at 510:17-24. Dr. Lee explained that the low pressure, SPK, and

epiretinal membrane reasonably accounted for drop in Melber’s uncorrected visual acuity. Id. at

467:14-16. In addition, Dr. Lee did take steps to address the low interocular pressure; he

discontinued Melber’s medication that was designed to lower eye pressure. Drs. Fineman and

Bhagat agreed with Dr. Lee’s treatment plan on August 3. Tr. Vol. 4 at 555:18-21; Tr. Vol 3 at

296:22-8.

Drs. Bhagat and Fineman further explained that there is no standard time frame in which a

large, nuclear RLF must be removed even if macular edema develops. Instead, the timing for

removal depends on clinical conditions. For example, if the cornea is hazy then surgery to remove

RLF is riskier because the surgeon’s ability to see into the eye is limited. See, e.g., Tr. Vol. 3 at

Defendant maintains that there was no evidence in the treatment notes of macular edema on

August 3. This argument, however, overlooks the critical issue, that is, if Dr. Lee performed either

an OCT scan or angiogram, would the test have revealed macular edema?

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297:9-18. Whether a patient has undergone multiple surgeries to the eye also impacts the timing

decision. Tr. Vol.4 at 553:18-24. Finally, both Drs. Bhagat and Fineman agreed that RLF must

be removed immediately if there is severe inflammation or high intraocular pressure that cannot

be controlled with medication. Tr. Vol 4 at 543:2-8; Tr. Vol. 3 at 299:1-6. Here. Drs. Bhagat and

Finernan indicated that neither condition was present so emergency surgery to remove the RLF

was not warranted. Ex. A at 48, Tr. Vol. 4 at 464:18-24. The Court credits the testimony of Drs.

Bhagat and Dr. Fineman. Roth physicians focus on the posterior ofthe eye, while Dr. Rosenblum’s

experience is centered on the anterior of the eye. In other words, Drs. Bhagat and Dr. Fineman are

doctors who regularly treat and surgically remove RLF.

Moreover, although Dr. Harris focuses on the posterior ofthe eye, his deposition testimony

is somewhat undercut by his contemporaneous treatment notes. Despite diagnosing Melber with

macular edema on August 24, 2009, Dr. Han-is did not schedule emergency surgery. Rather, he

directed that surgery should be scheduled “as soon as convenient.” Ex. G at 713. Critically, on

August 24, Dr. Harris recommended a “vitrectomy with the removal of the retained lens nucleus

in hopes of eliminating the edema and improving the vision at least somewhat,” he also observed

that the “amount of visual recovery will be limited due to the fact that the retinal detachment had

been present for several weeks prior to its surgical repair.” Id. Thus, on August 24. Dr. Harris’

notes indicated that Melber’s recovery was more limited due to the time in between the retina

detachment and retina repair surgery rather than from the macular edema caused by the RLF.

During his deposition, Dr. Harris also attributed a great deal of Melber’s loss of visual

acuity to macular edema. Yet, in his January 14. 2010 notes, Dr. Harris wrote that there was a

“mild amount of edema in the macula but this does not appear to be sufficiently severe to explain

his level of [visualj acuity loss.” Ex. B at 663. Dr. Harris continued that “1 think the level of

21
acuity is more related to the damage from the original detachment.” Id, Similarly, on August 9,

2010, Dr. Harris noted that there was no macular edema but Melber’s corrected visual acuity in

the right eye was measured at counting fingers at three feet. Ex. B at 580-82. Thus, even when

the macular edema had totally- resolved. Melber’s visual acuity remained poor. In fact, although

the macular edema fluctuated over time, Melber continued to have poor visual acuity. Finally, at

times Melber complained of pain or headaches. But macular edema does not cause pain. Harris

Dep. at 91:15-24. Rather, Dr. Harris believed that Melber’s headaches were either caused by

inflammation ortdgeminal neuralgia.’3 Id. at 87:1-5.

Dr. Harris explained that Melber also developed choroidal neovasculadzation (“CNVM’)

in the right eye. CNVM is a collection of abnormal blood vessels in the retina and can lead to

permanent vision loss. Maeular edema can cause CNVM. Id. at 46: 7-9. During his deposition,

Dr. Harris opined that the RLF likely caused Melber’s macular edema and the macular edema in

turn caused the CNVM. Id. at 54:1-55:2. Dr. Harris testified that the most common cause of

CNVM is macular degeneration (not edema), which is an age-related condition that typically

affects both eyes. Because Melber only presented with CNVM in one eye, Dr. Harris attributed

the CNVM to the macular edema. Id. at 54:3-12. Yet, in his January 1, 2016 notes, Dr. Harris

wrote that it looks like the right eye has developed CNVM related to macular degeneration. This

is imi-elated to piior histon’.”5 Ex. G at 882 (emphasis added).

Trigeminal neuralgia is a chronic pain condition that can cause excruciating pain in the face.

See Trigerninal Neuralgia, mayoclinic.org. https://www.mayoclinic.org/diseases

conditions./tdgeminal-neuralgia/symptoms-causes..’syc-20353344 (last visited April 18. 2019).

‘ Dr. Fineman also noted that with respect to the CNVM, Dr. Harris was using the lCD-b code

that is attributed to age-related maeular degeneration (not edema). Tr. Vol. 4 at 577:8-25. lCD10 codes are part of a system used to classify and code diagnoses, symptoms, and procedures.

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In sum, even assuming that Plaintiffs case-in-chief established a prima Jack’ claim for

medical malpractice, the Court alternately finds that Defendant’s evidence was more credible that

Plaintiffs evidence. As a result, the Court concludes that Plaintiff fails to establish that Dr. Lee

deviated from the standard of care and that any deviation proximately caused Plaintiffs injuries.

3. Dr. Walsman and Dr. Johnson

As discusscd, Plaintiff limited the relevant timeframe of liability to approximately August

3. 2009 to August 23. 2009. During this time frame. Dr. Lee was the only federal employee

involved in Plaintiffs care at the VA. Stipulated Facts 16-17. In fact, Dr. Johnson had not seen

Melber since May 14, 2009 (frI. ¶ 8) and Dr. Walsman had not seen Melber since June 19. 2009

(Id. ¶ 15). Given the fact that Drs. Johnson and Walsman were not involved in Plaintiffs treatment

during the critical time period, and Plaintiff provided no evidence as to the improper conduct of

eithcr Dr. Walsman or Johnson, the Court also finds in favor of both physician.

4. Damages

Plaintiff did not make a claim for lost wages or medical bills. As a result, viewed in a light

most favorable to Plaintiff, Plaintiff seeks to recover damages for the difference between visual

acuity of approximately 20/150 or slightly better (per Dr. Harris) or 20/200 (per Dr. Rosenblum),

and his current condition. All medical professionals recognized that once Melber suffered a

macula-off detached retina in his right eye, the visual acuity in this eye would not return to its prior

acuity. Accordingly, 201150 or 20/200 is the best-case scenario for Melbcr in light of his medical

history.

There was little testimony as to the difference between Melber’s current condition and his

best-case scenario. Dr. Harris opined that the difference between counting fingers and a range of

20/125 or 20/ISO was not a significant enough improvement to justify a fourth surgery for Melber

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in 2014 to remove the epiretinal membrane. Flarris Dep. at 104:1-il. Dr. Harris also explained

that for someone with “a normal fellow eye,”’6 the difference between 20/150 and 20/800 would

not be dramatic. Id. at 115:6-13. Dr. Harris stated that in this situation, the person should be able

to rely on the good eye for reading, driving, and watching television. Consequently, Dr. Harris

believed that the loss of visual acuity in one eye would not “change the quality of [] life

dramatically.” Id. at 115:115:12-13. However. Dr. Harris explained that depth perception could

be an issue, so a person with poor vision in one eye would need “a little extra care” when walking

up steps or judging distances. Id. at 117:11-13.

Dr. Fineman testified that he did not see any reason why the loss of vision in Melber’s right

eye prevented him from participating in normal, daily activities like driving, household chores,

and walking up and down stairs. Dr. Fineman explained that although it would take about six

months to a year to adapt. a person only needs one eye to do most activities; the fellow good eye

will take over for central vision. Tr. Vol.4 at 582:1-583:4.

Plaintiff’s characterization of his injuries and the limitations he faces is not in accord with

Drs. Harris and Fineman’s testimony. Plaintiff stated that his current quality of life is torrible.”

Tr. Vol 1 at 50:18-20. Plaintiff relies on his adult-son Michael to walk up stairs, go grocery

shopping, take him to doctor’s appointments, and for help with house chores. Michael, who lives

with Plaintiff, cooks, cleans, does the laundry, and mows the lawn. Moreover, Plaintiff does not

leave the house without his son and no longer drives. Id. at 51:1-25. Plaintiff also has poor depth

perception and has fallen twice. Id. at 51:25-527. Finally. Plaintiff states that sunlight blinds him,

and car lights bother his eyes at night. Id. at 52:8-12. Plaintiff, however, was asked to compare

his current condition with his life before his detached retina, when his vision was 20/20 in the right

16 The “fellow” eye refers to the other eye. Here the fellow eye is Melber’s left eye.

24
eye. Id. at 50:18-19. As discussed, because of the retinal detachment, this is an inaccurate

comparison. This is also the case for Michael’s testimony. Michael testified as to the difference

between his father before the detached retina and today. Id. at I 21:9-16. Again, the relevant point

of comparison is the best-case scenario for Plaintiffs vision after the retinal surgery in May 2009

to his present visual acuity.

Plaintiff also has numerous comorbidities. While not an exhaustive list, Melber has had a

hernia; has degenerative joint disease; has peripheral sensory neuropathy; has had numerous

surgeries, including open heart surgery; and has trigerninal neuralgia, which can cause pain in his

eyes. Tr. Id. at 99:16-103:2. Due to his multiple health conditions, Plaintiff takes a variety of

medications, including Vicodin. oxycodone. and Tylenol with codeine. Id. at 104:23-107:7. The

trigeminal neuralgia could account for some of the pain in Plaintiffs eye, but Plaintiff offered no

proof to distinguish that condition from the alleged injuries in this case. Moreover, certain

comorbidities such as the degenerative joint disease and the peripheral sensory ncuropathy —

could certainly affect Plaintiff’s current quality of life. Plaintiff made no effort to differentiate

between the loss of vision in his right eye and his other conditions when describing his current

quality of life. Moreover, it appears that Plaintiffs use of pain medication preceded 2009 by a

number of years. Again. Plaintiff did not differentiate between the pain he felt before August 2009

and after.

Finally, Melber also testified about eye pain that he incurred after the May retinal surgery.

This pain is not relevant as Plaintiff’s case is limited to his treatment at the VA with respect to

removal of the RLF after his cataract surgery. In addition, per Dr. Rosenbium’s testimony,

Plaintiffs claims are even thrther limited to around August 3. 2009 and tliereafter..Accordingly,

25
Melber is limited to pain and suffering that he suffered from August 3 onwards. But, according to

Dr. Harris. macular edema does not cause pain)7 Harris Dep. at 91:15-24.

The Court does not doubt that a person suffers some form of legal damages if his eyesight

in a single eye is reduced from 20/150 or 20200 to permanent loss of central vision. The difficulty

is that Plaintiff has the burden of proving the extent of his damages, and here PlaintifFs proofs fall

short. First, Plaintiff and his son focused on the difference between PlaintifFs vision before the

retinal detachment and his vision after. But as discussed. this is not an appropriate comparison.

Second, Dr. Fineman testified that when a person loses vision in one eye, that person can usually

resume most normal activities within a year if the fellow eye has good vision. Dr. Harris similarly

explained that such a person should be abic to perform many daily tasks. To this end, certain

activities that Melber claims he can no longer perform, such as cleaning or cooking, do not seem

attributable to the loss of vision in his right eye. As a result, the Court concludes that Plaintiff fails

to adequately establish the extent of his damages. The Court is, in essence, left to speculate as to

the dewee of Plaintiffs damages. Although the Court finds that Plaintiff fails to meet his burden

in proving liability, the Court also determines that Plaintiffs proofs as to the extent of his damages

are lacking.

7 The evidence at trial also suggests that Melber did not take certain reasonable steps to aid his

condition. For example, Melber did not fill a prescription that Dr. Harris prescribed (Tr. Vol. 1 at

91:14-92:3), there is an approximately two-year lapse in treatment with Dr. Harris (Harris Dep. 2

at 39:7-40:13), and when Melber obtained a second opinion while treating with Dr. Harris, Melber

did not tell Dr. Harris that he had obtained the second opinion or that the second doctor

recommended two additional surgeries that Melber opted not to receive (Tr. Vol. 1 at 96:4-16).

There is insufficient evidence demonstrating that any of these examples may have impacted the

visual acuity in Plaintiffs right eye. As a result, the Court will not consider this evidence in

assessing damages or as to comparative negligence.

26
III. CONCLUSION

For the reasons stated above, the Court enters judgment in favor of Defendant. An

appropriate Order and Judgnwnt will accompany this opinion.

Dated: April 23, 2019

ca&c\i

JOHN MICHAEL VAZ Z U.S.D.J.

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