Paula Szyjka v. Peter Vandermeer, No. 14-1439 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1439 ROMAN SZYJKA, Individually; Husband and Wife, ROMAN AND PAULA SZYJKA, As Plaintiffs - Appellants, v. PETER VANDERMEER, M.D.; ADVANCED RADIOLOGY, P.A.; BALTIMORE WASHINGTON MEDICAL CENTER, INC., Defendants - Appellees, and MIB PARTNERSHIP, LLP, Defendant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:12-cv-02834-RDB) Submitted: April 16, 2015 Decided: April 28, 2015 Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. James O’C Gentry, Emily C. Malarkey, SALSBURY, CLEMENTS, BEKMAN, MARDER & ADKINS, LLC, Baltimore, Maryland, for Appellants. Andrew E. Vernick, Matthew J. Chalker, VERNICK & ASSOCIATES, LLC, Annapolis, Maryland; John T. Sly, Nicole M. Deford, WARANCH & BROWN, LLC, Lutherville, Maryland, for Appellees. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Appellants Roman medical-malpractice others, alleging Szyjka action that and Paula against Dr. Dr. Szyjka Peter Vandermeer brought Vandermeer improperly identify an abnormality in Mr. Szyjka’s brain. resulted in a defense verdict. failed this and to A jury trial We affirm. Appellants first challenge the district court’s ruling that one of their experts, Dr. Joseph Landolfi, a neurologist and neuro-oncologist, could not testify regarding the standard of care for radiologists. The district court found that Dr. Landolfi’s testimony was barred by Md. Code Ann., Cts. & Jud. Proc. § 3-2A-02(c)(2)(ii) (2013), and lacked foundation. We review a district court’s decision to exclude expert testimony for abuse of discretion. 390 (4th Cir. establish its 2014). United States v. Garcia, 752 F.3d 382, “The admissibility proponent by a of the testimony preponderance of must proof.” Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001); see Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993) (noting that “[Fed. R. Evid.] 702 . . . assign[s] to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand”). parties on Our appeal review leaves of us the joint without appendix doubt that filed the by the district court did not abuse its discretion in finding that the Szyjkas 3 failed to establish an adequate foundation for admitting Dr. Landolfi’s testimony regarding the standard of care. ∗ Appellants also challenge the district court’s instruction to the jury regarding its review of a doctor’s conduct. See East v. United States, 745 F. Supp. 1142, 1149 (D. Md. 1990). “Although we review a district court’s refusal to give a jury instruction for abuse of discretion, we conduct a de novo review of any claim that jury instructions incorrectly stated the law.” United States v. Mouzone, 687 F.3d 207, 217 (4th Cir. 2012) (citations omitted). law and does erroneous.” not “So long as the charge is accurate on the confuse or mislead the jury, it is not Hardin v. Ski Venture, Inc., 50 F.3d 1291, 1294 (4th Cir. 1995). “While the content of jury instructions in a diversity case is a matter of state law, the form of those instructions is governed by federal law.” conclude that, taking the jury Id. at 1293. instructions as a whole, We the district court’s nonpattern instruction was permissible as it correctly stated Maryland law and did not confuse or mislead the jury. See Hetrick v. Weimer, 508 A.2d 522, 529 (Md. Ct. Spec. App. 1986) (approving jury ∗ instruction stating that Because Dr. Landolfi’s testimony regarding the standard of care lacked adequate foundation, we do not reach the question of whether Md. Code Ann., Cts. & Jud. Proc. § 3-2A-02(c)(2)(ii) also bars this testimony. See Creekmore v. Maryview Hosp., 662 F.3d 686, 690 (4th Cir. 2011). 4 reasonableness of doctor’s actions is determined based on “circumstances as they then existed at the time of the treatment . . . rather than [on] hindsight”), rev’d on other grounds, 525 A.2d 643 (Md. 1987). Accordingly, we affirm the judgment of the district court. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 5
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