Felicia Madden v. DVA
Filed opinion of the court by Judge Bauer. AFFIRMED. William J. Bauer, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and Diane S. Sykes, Circuit Judge. [6877166-1]  [16-3740]
United States Court of Appeals
For the Seventh Circuit
FELICIA MADDEN, Administrator of
the Estate of Phillip Madden and In‐
UNITED STATES DEPARTMENT OF
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 C 8053 — Milton I. Shadur, Judge.
ARGUED SEPTEMBER 13, 2017 — DECIDED OCTOBER 17, 2017
Before BAUER, ROVNER, and SYKES, Circuit Judges.
BAUER, Circuit Judge. This case was brought by the estate of
decedent Phillip Madden (“Madden”). The claim arises under
the Federal Tort Claims Act against the United States from an
ultimately fatal medical incident Madden suffered while in the
care, custody, and control of the Jessie Brown V.A. Medical
Hospital (“Hospital”). After a bench trial, the district court
found in favor of the United States. Madden now appeals. For
the reasons that follow, we affirm.
Madden suffered from numerous medical conditions,
including, but not limited to: morbid obesity,1 respiratory
acidosis, congestive heart failure, chronic obstructive pulmo‐
nary disease, obstructive sleep apnea, obesity hypoventilation
syndrome, hypertension, and hyperlipidemia. Madden was
admitted to the Hospital several times leading up to his last
admission on December 28, 2007.
On December 28, 2007, Madden went in for an outpatient
visit. The lab results were abnormal, which led to his admis‐
sion to the Hospital. At the time of his admission, the pulmo‐
nary consult service described him as suffering from a wide
range of medical issues, including those listed above as well as
others. A thorough investigation was recommended in an
attempt to improve Madden’s clinical outcome. As a result, the
Hospital took the precautionary measure of placing Madden
in respiratory isolation. On the same day, Madden’s wife
described him as “not being himself,” and requested the
presence of a staff member in the room with Madden at all
times. However, this description did not necessitate a personal
sitter, which is typically required only for psychotic and
Defined as a Body Mass Index greater than 40; Madden’s was 71.1.
During the same admission, the Hospital staff allowed
Madden to sit in a wheelchair because of the difficulty he had
lying in bed; the medical records indicate that Madden had to
sleep sitting up. Throughout his admission, Madden reported
that he was feeling fine, with a few comments about shortness
of breath. However, on the evening of January 1, 2008, Madden
was found unresponsive in his wheelchair. A Code Blue was
called. In order to intubate Madden with an endotracheal tube
to resuscitate him, the staff transferred Madden from the
wheelchair to the floor. It took the Hospital 25 minutes to
resuscitate him; Madden had suffered a cardiopulmonary
arrest. On January 25, 2008, Madden was transferred to a non‐
VA facility for long‐term care. He never regained conscious‐
ness, and died on January 8, 2010.
Madden’s estate filed a wrongful death suit against the
United States under the Federal Tort Claims Act. A bench trial
ensued, and each party brought in a medical expert witness.
Madden called Dr. Syed Husain and the United States called
Dr. Mindy Schwartz. The court heard testimony from both
witnesses as to the standard of care required for a patient
in Madden’s situation. The judge ultimately found that
Dr. Schwartz was a credible witness and Dr. Husain was not.
The district court specifically noted that the credentials of the
medical experts had no bearing on its decision. Rather, the
district court found Dr. Schwartz’s opinions were supported
by the medical records, relevant literature, data, and studies,
and medical explanations. Conversely, the United States
successfully impeached Dr. Husain, exposing his lack of
consultation of relevant medical literature and even Madden’s
medical records themselves. Additionally, the district court
detected a sense of bias from Dr. Husain, stating that it was
likely due to the fact that he was a family friend and was
originally approached to provide support to the family before
The district court found in favor of the United States.
Madden’s estate challenges the district court’s finding that the
United States’ expert witness was credible while Madden’s
expert witness was not, as well as a litany of other factual
findings made by the district court.
On appeal, findings of fact cannot be set aside unless the
lower court’s ruling was clearly erroneous. Fed. R. Civ. P.
52(a)(6). The Supreme Court held that, “[a] finding is ‘clearly
erroneous’ when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.”
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); See
also Furry v. United States, 712 F.3d 988 (7th Cir. 2013). If there
are two plausible views of the evidence, a reviewing court
cannot set aside a finding simply because it would have found
differently than the trier of fact. Anderson v. City of Bessemer
City, N.C., 470 U.S. 564, 573 (1985).
In a bench trial, a district court judge must act as both
gatekeeper and fact finder. Goodpaster v. City of Indianapolis, 736
F.3d 1060, 1068 (7th Cir. 2013). The judge must determine both
the admissibility of expert evidence under Federal Rule of
Evidence 702 and the credibility of the expert witness. Id.
A district court’s finding of an expert witness’s credibility
is one of fact, and is therefore reviewed for clear error. Id. We
give “great weight” to the district court’s credibility findings
“based on the demeanor of witnesses at trial.” United States v.
Huebner, 752 F.2d 1235, 1241 (7th Cir. 1985). “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.” Gicla v. United States, 572 F.3d 407, 414 (7th
2009). “[I]n a case of dueling experts, as this one was, it is left
to the trier of fact, not the reviewing court, to decide how to
weigh the competing expert testimony.” Wipf v. Kowalski, 519
F.3d 380, 385 (7th Cir. 2008).
Madden argues the trial court was biased against the
plaintiff throughout the entirety of the bench trial, but specifi‐
cally in finding the United States’ expert witness was credible
while Madden’s expert witness was not credible. In so arguing,
Madden claims the discrepancies in Dr. Husain’s testimony the
district court relied on were “de minimus matters.” We
The district court found that Dr. Husain’s testimony
proved, if nothing else, his lack of knowledge and familiarity
with Madden’s medical records; the district court noted that on
several occasions, Dr. Husain’s testimony brought to light his
lack of familiarity with numerous sections of Madden’s
medical records. The district court also noted that he provided
his expert opinion based on facts not supported by the medical
records, and his opinions were not supported by relevant
medical literature, data, and studies. The district court also
made note that he had an innate bias due to his relationship
with Madden’s family and his involvement with Madden’s
medical situation prior to Madden’s death.
On the other hand, the district court found that it was clear
from Dr. Schwartz’s testimony that she reviewed the entirety
of Madden’s medical records. Her opinions were drawn from
her knowledge of the medical records, coupled with research
conducted to present the necessary literature, data, and studies
during her testimony. The district court properly found one
expert witness more reliable than the other and Madden
presents no valid reason to quarrel with this determination.
Madden also challenges a litany of other factual findings
regarding the standard of care provided by the Hospital. Some
of these include: the Hospital’s denial of a sitter upon Mad‐
den’s wife’s request; allowing Madden to sleep in his wheel‐
chair; the Hospital’s decision to lay Madden on the floor rather
than lift him to the bed during the Code Blue; and the fact that
it took the Hospital 25 minutes to intubate Madden. With no
valid reason to set aside the district court’s conclusion on the
credibility of each expert witness, we have no reason to
conclude that the court’s factual findings based on their
testimony were clearly erroneous.
For the forgoing reasons, we AFFIRM the district court’s
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