No. 21-1650

DENISE DUVAL, Administrator of the Estate of Wilfred Duval,

Plaintiff, Appellant,

v.

UNITED STATES DEPARTMENT OF VETERANS AFFAIRS,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Leo T. Sorokin, U.S. District Judge]

Before

Kayatta, Howard, and Thompson, Circuit Judges.

Traver Clinton Smith, Jr., with whom Law Offices of Traver Clinton Smith, Jr., was on brief, for appellant. Michael L. Fitzgerald, Assistant United States Attorney, with whom Rachael S. Rollins, United States Attorney, and Eve A. Piemonte, Assistant United States Attorney, were on brief, for appellee.

June 1, 2023 HOWARD, Circuit Judge. Denise Duval, as the administrator of her father's estate, urges us to conclude that the district court abused its discretion by declining to strike expert witness testimony at a bench trial, testimony that she contends fell outside the scope of an expert's pretrial disclosures. She consequently asks that we vacate the judgment of the district court in favor of the government and remand for a new trial. Finding that any ostensible error committed by the district court was harmless, we affirm the judgment.

I.

In this case, our review follows a bench trial, and so "[o]ur recitation of the facts is drawn from the [d]istrict [c]ourt's findings of fact and conclusions of law." Emhart Indus., Inc. v. U.S. Dep't of the Air Force, 988 F.3d 511, 515 n.1 (1st Cir. 2021); see Duval v. United States, No. 18-10405, 2021 WL 5701770 (D. Mass. July 20, 2021) (district court opinion). Our focus is trained principally on the portions of the record most relevant to Duval's argument on appeal that the government violated expert discovery rules by introducing an allegedly previously undisclosed theory on the fifth day of trial -- namely, that a suture used by medical providers on her father migrated from its intended location.

- 2 - A.

This appeal arises from a medical malpractice action that Duval brought against the U.S. Department of Veterans Affairs under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680. Duval alleged that providers at the West Roxbury Veterans Affairs Medical Center ("VA") negligently performed a percutaneous coronary intervention ("PCI") on her father, Wilfred Duval, in March 2015. Wilfred Duval died just under a year after the operation; his daughter brought this action as the administrator of his estate.

Wilfred Duval, then an 84-year-old resident of Claremont, New Hampshire, was hospitalized in February 2015 after suffering a heart attack. He was diagnosed with "severe . . . coronary artery disease" after a cardiac catheterization procedure and was then transferred to the VA for further evaluations. Because of his age and multiple comorbidities, medical providers at the VA recommended -- and Wilfred Duval agreed to -- the following two-step process to treat his coronary artery disease: first, a "minimally invasive direct coronary artery bypass" procedure ("MIDCAB"), and then a PCI. The MIDCAB procedure was completed without complications and is not at issue in this appeal.

Dr. Ioannis Chatzizisis and Dr. Sammy Elmariah performed the PCI approximately a week after the MIDCAB. As the district

- 3 - court explained, "