Jose M. Arvayo, Etc. v. United States

McKAY, Before BARRETT and Circuit Judges, WINDER,* Judge. District BARRETT, Judge. Circuit malpractice This against case the United States was by commenced Jose and Tina Arvayo under the Federal Tort Claims Act (FTCA) on son, behalf of Jose, Jr. Following court, trial to the damages in $1,950,000 amount of were awarded in the Arvayos’ F.Supp. favor. 580 753. The dis- positive on appeal issue is whether the ad- ministrative claim filed was timely.1

The relevant facts are dispute. not in On January Arvayo Tina brought Jose, Jr., old, then five months to Dr. De- Poe at the McConnell Air Force Base Hos- pital because he cranky and had been suffering from a days. fever for nine Af- Jose, ter briefly examining diag- Dr. DePoe nosed upper his condition as an respiratory (URI) infection virus—for pre- which he —a Concentrate, scribed Triaminic and directed Arvayo Tina to return with Jose in a week if his improved. condition had not By 11:00 a.m. morning, the next 31,1979, Jose’s sig- condition had worsened nificantly. eyes crossed, His and he from convulsions. Tina Ar- vayo returned with him to the McConnell Winder, *The Honorable K. years David United States after such claim accrues or unless ac- Utah, Judge sitting by District for the District of begun tion is within six months after the date designation. mail, mailing, by registered certified or notice of final denial of the claim 2401(b) (1982) provides: 1. 28 § U.S.C. agency presented. (Emphasis to which it was against A tort the United States shall be forev- added.) presented er writing barred unless it is appropriate agency Federal within two that Dr. fail- physi- alleging district court emergency room where an hospital, timely and treat the men- ure to Pascua, immediately recognized cian, Dr. ingitis of Jose’s retardation. Prelimi- was critical. condition that Jose’s Rejecting testimony as biased the as bac- diagnosing condition Jose’s narily diag- that Dr. DePoe’s Government doctors transferred Pascua meningitis, terial fallen nosis and treatment below Hospital, a civilian Joseph’s St. Jose to standards, prevailing community the dis- At St. specialized care. for more hospital, found that Jose was trict court examined Jose doctors Joseph’s several 30, 1979, meningitis January that Their of the afternoon. during the course community would have the standard the meningitis of “working diagnosis” condition, and that been to the p.m. approximately 6:00 confirmed at diagnosed and had condition treat- been Butler, his- had taken Dr. who Jose’s after before, day probably would not ed Jose Arvayo earlier that after- tory from Tina severely disabling inju- have suffered the spinal tap. noon, performed lives and ries he now with. Memorandum and by Dr. Butler history taken The Order, District Court for the United States Abbas, neurologist Dr. by him and signed 23, 1984), (February at District of Kansas at St. charge of Jose’s care primarily Opinion”]. “Memorandum 19 [hereinafter doctors were that both Joseph’s, reveals Further, that “the the district court found to McConnell had been taken aware Jose [Arvayos] timely apprised were of never given Triamin- had day before and significance of any suspicion reason also were aware They ic treatment. 30, DePoe the event with Dr. weeks, though not prior two that within the 1979, Arvayo] an until visited attor- [Tina before, had at McConnell day doctors ney the summer of 1981.” Id. at 36. (R.Vol. as an URL diagnosed his condition upon This the court’s based 7; 370.) 1 Vol. 15 at at Arvayos of the and conclusion observation 1979, August, Arvayos were By wholly “quite young, were trust- significant aware Jose suffered authority, per- ing particularly of medical Be- meningitis. damage from the brain sons,” suggested one has and “[n]o 1981, 1979, August, January, and tween any relationship plight the child’s between however, Arvayos inquiries no made if delay diagnosis. It is doubtful and propriety, impropriety, of to the any treating physicians had even and treatment on Janu- DePoe, of his heard of Dr. the estent care Furthermore, 30, no fa- doctor ary treatment; assuredly, and most no one infor- the case volunteered such miliar with relationship.” Id. The had volunteered a 1981, Arvayo Tina con- August, mation. district ruled that the cause court thus present case attorney her in the sulted August, when the action accrued dissat- she her husband were significance Arvayos were of the informed cov- government insurance isfied with the delay in the at- expenses. medical The erage of Jose’s cases. at 38. Id. malpractice firm torney was a medical involving previously handled cases that had Discussion in- diagnosis meningitis. After delayed The 28 U.S.C. purpose behind Arvayo possible con- forming of the Tina 2401(b) provision of the limitations § —the delayed diagnosis of men- nection between reasonably dili require FTCA—“is to retardation, attorney ingitis and mental against the gent presentation claims of tort firm retained handle and his Kubrick, v. Government.” United States Thereafter, on December case. 352, 360, 111, 123, 444 U.S. at S.Ct. Arvayos filed administrative 2401(b), (1979). 62 L.Ed.2d at 259 Section claim. generally, repre like statutes limitations that it is un “legislative judgment claim de- sents a After their administrative adversary on notice to put nied, just federal to fail to brought suit in Arvayos time,” specified period Joseph’s defend within St. treatment at probability 117, 100 S.Ct. at and that “the id. at damage brain as a result meningi free of right to be stale claims time tis, the Government contends that the claim prevail right prosecute over the comes August, 1979, accrued no later than when Railway Telegraphers Railway them.” were informed that Jose had 342, 349, Express Agency, 321 U.S. at 64 in fact brain damage. suffered (1944). L.Ed. S.Ct. at 788 Government asserts that such a result is Furthermore, because the statute waives dictated holding this court’s in Gustav sovereign immunity of the United States, son v. United 655 F.2d 1034 States, be courts should mindful to con- Cir.1981). it in strue a manner neither which extends Arvayos, hand, on the argue other nor Congress narrows the waiver intended. that the Government’s chacterization of the Kubrick, 117-118, supra, U.S. at overly cause of the simplistic. 356-357, cases cited therein. They contend that the cause of re- Jose’s Unfortunately, however, legisla the tardation simply meningitis; was not the 2401(b) history tive is silent as to the § the cause of his injury also Dr. De- meaning Kubrick, of “accrues.” See su Poe’s failure to diagnose his condition as 119, pra, 444 at 100 U.S. S.Ct. at 357. meningitis and to appropriately treat it Consequently, the Court in Kubrick 30, January 1979. The Arvayos assert that adopted “general prevailing the rule” there is a basic theoretical distinction be- among the circuits at the time a that malpractice tween involving cases a “com- of action accrues under the FTCA when mission”—an affirmative act which results injury “the has discovered his both clearly in injuries identifiable mal- —and 120, and its cause.” Id. at 100 S.Ct. at 358. practice involving cases “omission,” i.e., an Kubrick’s cause of action was held to have diagnose, treat, a failure to or warn. Ku- by accrued when he was a informed civilian brick, Arvayos assert, the involved a situa- neomycin doctor that the treatment pre in tion neomycin which the treatment —an by scribed a VA doctor for treatment of affirmative by act—administered the VA following surgery femur infection doctors resulted in clearly Kubrick’s identi- Accrual, hearing caused his loss. accord hearing fiable loss. Such is case of “com- Court, ing to the did not await Kubrick’s mission,” argue Arvayos, the and be should prescription neomycin awareness that of distinguished from cases in plain- which a (a for improper negligent the infection was tiff is aware the bare medical cause act). Once Kubrick was aware of these or injury, his her but is unaware of the underlying “critical facts” injury and its omissions, cause, misdiagnoses, part or on the Court, inquire reasoned the he could treating physicians in that legal community and exacerbated a medical as to previous fact, injury argue condition. In negligently whether his had been the Ar- 123, Supreme vayos, recognized inflicted. at 100 Id. S.Ct. at 360. Court such a distinction Kubrick: Both the Government and Arva plaintiff] injured That has been in fact [a yos rely respective Kubrick may be unknown or unknowable until the positions. Although they agree as to the injury itself; manifests and the facts injury this case—mental retardation— may about causation be the control of they disagree as to the “cause” of the putative defendant, unavailable injury. argues The Government that the very difficult to obtain. cause of Jose’s retardation was bacterial prospect so meningitis. plain- bleak for a Because the were in possession tiff critical facts early formed doctors as as mening he has been hurt has Jose was and who inflicted itis, injury. longer and He is no mercy because those same doctors in Arvayos throughout formed the Jose’s of the latter. There are others can who treatment, he as result dialysis and died wronged, has if he tell him kidney with his complications associated only ask. need failure. 122, 100 at 359. S.Ct. U.S. involving a case was thus Gustavson Arvayos insofar agree with the We misdiagnoses multiple multiple omissions. interpret of the word Kubrick’s use — however, present For purposes, Gustavson mere than aware- “cause” mean more in which important for the manner involving ness the medical cause cases its plaintiff’s injury court described treat, To a or warn. diagnose, a failure There, applying the defini cause. Kubrick Kubrick, though case even certain extent “accrues,” tion of the word we held that commission, supports such a conclusion. plaintiff’s cause when of action accrued There, the cause described Court (damage to his he “knew of neomycin hearing as “the Kubrick’s loss (failure kidneys) the cause to correct hospital.” treatment administered stage).” an earlier his ureter disorder at (Empha- at 355. thus 655 F.2d at 1036-1037. Gustavson hearing added.) Although Kubrick’s sis the cause of the recognized that directly by neomycin, both loss was caused kidney damage simply was not vesico-uret drug hospital’s and the affirma- itself infection; eral reflux and its associated administering drug could tive action military cause of his condition was also injury. said to be “causes” Kubrick’s be disor doctors’ “failure correct his ureter words, can In other more than one factor stage.” der at an earlier Accord Waits injury. an the “cause” of be viewed as States, 611 F.2d Cir. United assertion, Contrary to the Government’s 1980) (“It enough trigger to the is opinion in we believe that this court’s Gus- that the claimant statute of limitations is tavson, supra, provides support direct injury if he unaware of the aware of his proposition that the term “cause” in the injury”). act which caused the or omission just more the these' cases includes than to of the Applying the facts Gustavson As plaintiff’s injury. of the medical cause case, reject present we must Govern- child, plaintiff in had seen a Gustavson meningi- “bacterial ment’s contention that par- military doctors for what his several injuries. tis” was the sole cause Jose’s He ents believed to be unrelated ailments. had Dr. The district court found that De- se- of these doctors for a consulted some diagnosed treated properly Poe Jose’s con- bedwetting problem; others were vere on Jose would condition concerning mass in his painful sulted a injuries disabling he not suffer from the military neck a fever. All of these link now There is thus a direct endures. as doctors failed to these ailments misdiagnosis between Dr. DePoe’s symptoms of reflux and vesico-ureteral injuries. say, This is not to how- Jose’s associated with it. infection ever, omissions that Dr. DePoe’s finally consulted with doc- plaintiff civilian injuries. Had Jose not sole cause of Jose’s correctly diagnosed and treated tors who the time been by reimplanting his the condition ureters. him, there could be no Dr. examined DePoe doctors also informed These civilian on part which to “omission” operation have been plaintiff that the could liability. premise There were therefore kidneys and that his had years done before together to two combined causes which damaged long-con- as a result of been produce single a injury.2 Gustavson, supra, F.2d reflux. tinued district later, That we years have concluded Four 1036. mis- correctly Dr. DePoe’s claim. Not determined that plaintiff filed his administrative injuries of Jose’s thereafter, following kidney was a long failure cause may charged be may analogized causes be to the that each two more a 2. Such conclusion said, tortfeasors, which, single injury.” & Keeton Prosser joint has been with a Torts, law of 1984). upon very largely recognition the fact at 268 ed. "rests not, however, inquiry. does end We conclusion the lower courts that Ku- whether, further determine under the must brick exercised all diligence. reasonable case, Although circumstances this he diligently ascertained the a duty inquire to as to the cause of he injury, sought his no advice injuries years than Jose’s earlier the date within two thereafter as to wheth- attorney upon consulted their another legally wronged. mat- er had been Although imposition duty ter. to dissent would exeuse omission. For inquire may appear purposes, as to causation to statute of we be limitations would holding departure from the in Ku- not. Court’s brick that once a is aware of the 444 U.S. at n. n. cause, injury existence of his or her and its (Emphasis added.) duty inquiries he or she is under a to make Nevertheless, unnecessary it is for us to injury as to whether the result of speculate on whether such an extension of negligence, the context of failure to di- warranted, duty inquire the Kubrick to treat, agnose, and warn cases such an ex- because such an already extension has oc- duty tension seems unavoidable. is, potential curred That circuit. The mere characterization of the “cause” plaintiff already duty inquire has the injury type of an cases of this as a “negligence” both “causation” and implies very “failure” or an “omission” light of holding our in Gustavson. In Gus- sense

real that the doctor did not do some- tavson, plaintiff’s personal representa- thing that he or had a she to do. sought application tive “to avoid matter, Although, aas theoretical a doc- grounds statute on the plaintiff] that [the an tor’s failure detect illness does not reasonably failed to draw a causal link necessarily community mean standards of negli- between and some of the breached, due care have we conclude gent diagnoses by military doctors until determining in the context of when a years filing____” within two of the date of any attempt cause of action accrues 655 F.2d at 1035. The causal connection distinguish concepts the two would be arguably reasonably largely futile. The existence of this dilem- misdiagno- failed draw was between the recognized by ma was in the dissenters concerning sis a in mass his neck and his my judgment applica- Kubrick: “In a fair kidney problems. argued It was that the of ignorance”] tion “blameless rule3 [the begin statute did not to as run to this to attempt forecloses Court’s distin- misdiagnosis in 1973 in because 1973 the guish plaintiff’s knowledge a of between doctors of only civilian advised injury the cause of his on the one hand and probable his connection between bed- knowledge his of to the doctor’s failure wetting problems kidney his damage; and acceptable meet medical standards on the probable did they not advise him of the other,” 127, at U.S. 100 S.Ct. at 361 lump connection between the in his neck (Stevens, dissenting); arguably, J. this di- held, kidney problems. and his We how- implicitly recognized by lemma was also ever, that once the was informed majority: probable as to connection between his (cid:127) suggests bedwetting kidney damage, As the dissent ... we are and his “the partial disagreement upon in thus with the him to in burden ascertain what rule, ignorance” igno- 3. The "blameless announced Court held that because of his "blameless 163, Thompson, injury, the Court in Urie v. of fact of rance” of his his cause (1949), provides L.Ed. 1282 a action did not accrue the Federal under Em- Liability plain- ployers’ of action does not accrue until the Act the disease manifest- until case, 169-170, injury plain- tiff's In itself. manifests itself. ed Id. 69 S.Ct. at 1024-1025. Although working opinion Urie a tiff contracted while as we conclude in this that the silicosis "blamelessly ignorant,” fireman on a Urie’s not we steam locomotive. condi- were diagnosed appropriate he tion not until after became stress that under circumstances any charge ill to rule make too work. Reluctant to Urie with could excuse the failure to unknowable,” inherently inquiries and the "unknown as to causation. findings on the its inquire have been ure to basis of should instances his condition Joseph’s probably did recognized.” 655 F.2d at Inasmuch that doctors St. diagnosis pre- not ex- plaintiff in not know of as the Gustavson effect, a possible day. connection In what the district plicitly informed as vious kid- lump require duty in neck and his his is a between would disclosure implicitly doctors, duty this court ney problems part of rather than a on the him to discover not upon part plaintiffs. a burden The placed on the inquiry whether, these doctors breached a question hindsight, whether is not him, in the first inquiries but also to discover fruit- Arvayos’ would have been a causal con- Joseph’s instance whether there was did less the St. doctors because inactions, actions, or nection between Dr. DePoe’s and the not know of injury. ques- subsequent delay in treatment. The person whether simply tion is a reasonable a plaintiff ex question The whether Arvayos’ position, in the with the knowl- diligence inquiring reasonable ercised edge diagnoses different drastically of two injury of his will of course to the cause con- twenty-four period, hour with the particular vary the facts of each case. with damage, would comitant likelihood of brain case, parents present inquiry. type have made some We must any inquiries made whatsoever. never that under these circumstances was hold inquire district court found their failure Arvayos to no unreasonable for the make reasonable, though twenty-four in a even inquiries whatsoever. span they were told one doc hour time the fact is no to We stress that there issue their son had a mere URI and tor that part any concealment on bring him back in week if did See, hospitals e.g., involved. day doctors improve, and next informed (alternative condition, Waits, possibly supra, 611 F.2d at 553 their son was critical holding). None in this meningitis, the likeli of the critical facts suffering from changed January 31, case between damage. As we read hood of brain August, Arvayo when Tina for- opinion, the Arva district court’s it excused tuitously attorney from her that a essentially two learned yos’ inquire failure to first, delay could lead they young because were reasons: damage. par Arvayos’ brain contention couple, “wholly trusting authority, accrue second, that a cause of action does not persons”; ticular medical diagnose, in a under the FTCA failure Arvayos’ might have any inquiries the treat, or warn case until are aware— fruitless because made would have been possible informed —of a connection be- Joseph’s none of the doctors St. misdiagnosis and an could diagnosis the tween of Dr. DePoe and his aware indefinitely. possibly toll the statute We day prior, therefore were unaware conclude that such a construction would be any delay in treatment. Memorandum unwarranted, extension of an unintended Opinion at 35. meaning of the “accrues” as it is word view, reasoning In our the district court’s 2401(b). used § First, quote points. on is flawed both imply every that in describing Arvayos, gener- We do not intend to as well as treat, diagnose, or warn case the reading opinion, failure to al of the district court’s at the plaintiff’s of action accrues applied that the a sub- cause convinces us diagnosis dif- objective plaintiff time the receives a jective rather than an standard diagnosis and is previous in- Arvayos’ ferent from standard what the circumstances; injured. has or she been quiry aware that was under questions the precise Arvayos “rea- Nor do we decide question whether the under these have asked sonably objective should diligent” is of course an under that Second, circumstances. We decide reasoning fails one. the court’s circumstances, person in a reasonable Arvayos’ fail- these it excuse would Arvayos’ position would have made which time he signs exhibited of brain dam- type inquiry age. some as to whether Dr. correct, had been and if 19, 1981, August plaintiff’s On parents they suspicious had it become that had not sought legal concerning advice govern- correct, may whether the mistake coverage ment’s insurance of their son’s damage. have contributed Jose’s brain medical therapy expenses. hap- It recognized

As even the dissenters Ku- pened the attorney they that consulted had plaintiff ignorant brick: “A who remains experience malpractice medical through diligence lack of cannot be charac- involving cases delayed diagnosis of ” terized as ‘blameless.’ U.S. at meningitis. He plaintiffs informed par- 100 S.Ct. at 362. Dr. ents that diagnose DePoe’s failure to and treat meningitis possibly regret pre- It is with that our decision of plaintiff’s damage. brain any recovery by vents Jose and Tina Ar- parents proceeded Plaintiff’s to investigate son, vayo Jose, on behalf of their Jr. The possibility negligence and thereafter Jose, damage continuing Jr. and pain filed their FTCA claim on December family, trag- and trauma for the entire is a edy, speak not hardships of the financial surely must endure unless re- private trial, plaintiff’s At attorney argued that obtained, urge, lief can be sincerely we suffering from the initial through Congressional action. stages of bacterial meningitis when Dr. DePoe him January examined on REVERSED. and that the doctor’s failure to and treat injuries. disease caused his McKAY, Judge, dissenting: Circuit government The lawyers argued plain- The issue in this case is whether the tiff was not district court’s plaintiff’s medi- examination, the time of Dr. DePoe’s malpractice timely cal claim was filed is that the doctor’s and treatment clearly erroneous. upper respiratory appro- infection was priate. The relevant are government facts uncontroverted. The also contended brought plaintiff’s mother the infant administrative claim was military 2401(b) him to a hospital timely filed under 28 U.S.C. § (1982), complaining provides nine-day of a which that: fever and briefly crankiness. After examining the against A tort claim the United States plaintiff, family practitioner duty, shall be forever barred unless it DePoe, diagnosed Dr. his condition as an presented in writing to appropriate upper infection, respiratory prescribed Tri- agency years Federal within two after Concentrate, aminic plain- and instructed or such claim accrues unless action tiff’s mother to return with begun her child within within six after months the date improve. mailing, week if his condition registered did not certified mail, of notice of final denial of the claim Because condition had dete- agency presented, to which was significantly by riorated day, the next added). (emphasis parents brought emergency him to the military hospital. room of the The emer- trial court found that the claim was gency physician, Pascua, prelimi- room filed, timely government neg- that the narily diagnosed plaintiff’s ligent failing condition as in diagnose and treat the meningitis 30, meningitis January bacterial and transferred him to bacterial on 1979 hospital specialized that, a civilian properly for care. and had the disease been There, diagnosis date, meningitis diagnosed plain- the of on and treated that was confirmed appropriate quite probably treatment tiff would not have suffered damage was administered. Plaintiff treated the brain and retardation that now was 1979, meningitis through damages for in March of afflict him. The court awarded $1,000,- majority finds that the district court $1,950,000, The of which the amount of finding incorrectly at a of arrived reason- suffering. pain for 000 was applied subjective it “a because ableness not does chal- government the appeal, On objective standard rather than an standard finding negli- of court’s lenge the trial inquiry was Arvayos’ the of to what administra- the argues that gence, but circumstances,” Maj.Op. at the under The filed. timely not was tive claim Arvayos’ fail- it excused “the and because part contend, of its as not government does findings inquire the of its ure to on basis plain- that argument, of limitations statute probably did Joseph’s that doctors St. actually that the de- knew parents tiff's the diagnosis pre- not know of DePoe’s plaintiff’s a cause layed my day.” Maj.Op. 1422. In view vious Indeed, government does not the injuries. opin- court’s the district this misconceives physician that no claim plaintiff’s contest notes, true, majority that as the ion. It hospital- during his treated who plaintiff’s refers to the the court district parents that Dr. De- his ization informed “wholly young couple, trust- parents Poe’s failure authority, per- ing particularly medical resulting delay in January 1979 and mean, necessarily sons." This does not might have caused his brain treatment however, applying a that the court was government contest damage. Nor does diligence re- subjective standard as to the Pascua, a col- plaintiff’s that Dr. claim parents. The court’s quired plaintiff’s was retained league of Dr. DePoe who in plaintiff’s parents characterization parents to treat after plaintiff’s certainly relevant to the first regard hospital, did not discharge his from the analysis— of limitations tier of statute Dr. DePoe’s failure inform them that they actually knew causal whether meningitis might diagnose and treat delayed diagnosis. More- import of the damage. plaintiff’s brain have caused over, uses the the fact that the court that Rather, government argues diligent in “reasonably claimant” phrase timely filed not administrative claim was F.Supp. at indicates opinion, plaintiff’s parents should have the standard to be that he was aware that more than their cause of action known of analysis tier of the applied the second years prior the date on which two Further, disagree I objective was an one. filed this suit. of the trial majority’s assessment with inquiry have any would court’s The of the word “accrues” definition likely not the futil- futile. Whether or been 2401(b) has the source of 28 U.S.C. making doctors at the ity inquiries of the judicial discussion. United considerable to the issue hospital was relevant civilian 111, 120, Kubrick, 444 States reasonableness, plaintiff’s parent’s (1979), 62 L.Ed.2d finding that district court’s my view the that a of action Supreme Court held cause merely inquiry have been futile was would plain when under the FTCA “the accrues finding that independent peripheral to its its both his tiff has discovered inquire reason- failure to plaintiff’s majority agree I with the cause.” Thus, applied district court able. holding Gustavson v. United under our statute limitations standard its correct Cir.1981), States, F.2d 1034 analysis. purposes of plaintiffs injury for “cause” not analysis was question of limitations the district statute before meningitis, plain- merely disease of bacterial reasonable whether was delayed diagnosis of this dis believe that Dr. parents also the tiff’s but not, however, not agree 1979 was I do ease. dam- contributing to their son’s brain to overturn trial cause majority’s decision accuracy inquire fail to into plaintiff’s parents age and to court’s conclusion us is question before diligent ascertaining of the belief. reasonably rea- parents were plaintiff's injuries. whether 1425 but, rather, sonable their conduct wheth- evidence differently. Where there are finding er the district court’s permissible two evidence, views of the implausible were reasonable is so as to the factfinder’s choice between them can- erroneous____ merit reversal. clearly not be is This so even question It is when the district well-established court’s accrues, findings purposes when a claim for do on credibility rest deter- minations, period, FTCA is limitation a matter of fed but are based phys- instead on States, eral law. Exnicious v. United 563 ical or documentary evidence or inferenc- (10th Cir.1977); F.2d 420 6n. Stoleson es from other facts. States, (7th v. United 629 F.2d 1268 (citations omitted). Cir.1980); States, 405 Williams v. United my view, In the majority misconceives (5th Cir.1968). F.2d 235 n. 5 The issue reviewing our role as a only court. Not is a when knew or with reason the district equipped court better to find diligence able should have known facts, but fairness dictates that those find- question cause of action is a for the finder ings great be overturned circum- See, e.g., Maughan fact. v. SW Servic spection. As the Court noted Bessemer Inc., (10th ing, Cir.1985); F.2d 1381 758 City: Corp., v. Lundy Union Carbide F.2d parties appeal a case on have (9th Cir.1982); v. A.H. Ballew Robins already been forced to concentrate their Co., (11th Cir.1982); 688 F.2d 1325 Renfroe energies and resources persuading Co., Lilly v. Eli & 686 F.2d Cir. judge the trial that their account of the 1982). one; facts is the correct requiring them Supreme Court recently made clear persuade three judges more at the apply reviewing the standard arewe appellate requiring level is too much. As findings trial court’s factual in Anderson the Court has stated in a different con- — U.S.-,

v. City City, Bessemmer text, the trial on the merits should be -, 1504, 1511, 105 S.Ct. L.Ed.2d ‘the main event’ ‘tryout ... rather than a (1985): road.’____ reasons, on the For these re- plainly This standard does not entitle a findings view of factual clearly under the reviewing court to reverse the erroneous standard —with its deference simply the trier of fact it because rule, to the trier of fact—is the not the convinced that it would have decided the exception. differently. reviewing case (citation omitted).* Id. oversteps the bounds of its under I cannot conclude that the district court’s duplicate Rule 52 if it undertakes to findings plaintiff’s parent’s reason- role applying of the lower court. ‘In implausible ableness were so as to merit clearly erroneous find- standard Certainly, reversal. the view that Dr. De- ings sitting aof district court without Poe’s contributing was not jury, appellate constantly courts must suffering was not have in mind that their function is not to from decide de If at the time of Dr. factual issues novo.’ ... was not so district court’s account the evi- unreasonable plausible prevent government as to light arguing dence from of the record it at Even entirety, ap- parents viewed its the court of trial. peals may though not reverse it that their even believed child was convinced sitting diagnosis, that had it been as the the disease at the time of the it fact, trier it weighed would have is far from clear that would have been * addition, J., dissenting) (“By promoting Supreme we should not further burden our conducting High Magistrate every overburdened dockets exhaustive Court as the warrant- seizure, practice review such fact-bound determinations. less search and has bur- Cf. — -, -, Carney, argument present- 10 dened the docket with cases California (1985) (Stevens, ing significance.’’). 85 L.Ed.2d 406 fact bound errors of minimal them to have believed

unreasonable son suffered injuries consequence

the inevitable day’s delay that mere affect on the extent

diagnosis had no circumstances, these injuries. Under

those plaintiff would finding that a reasonable into the inquired further effect of

not have implausible. is not delayed diagnosis affirm.

I would America,

UNITED STATES

Plaintiff-Appellee, KENDALL, Lee

Graham

Defendant-Appellant.

No. 83-1908. Appeals,

United States Court Circuit.

Tenth

July

Case Details

Case Name: Jose M. Arvayo, Etc. v. United States

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Aug 13, 1985

Citation: 766 F.2d 1416

Docket Number: 84-1479

Court Abbreviation: 10th Cir.