Sherita Murphy v. United States of America

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1918
SHERITA MURPHY; JONATHAN MURPHY, JR., Individually; J.M.,
an Infant, by and through Sherita Murphy and Jonathan
Murphy, Jr., his Parents and Next Friends,
Plaintiffs - Appellants,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:07-cv-00120-RGD-FBS)
Argued: March 23, 2010 Decided: June 17, 2010
Before GREGORY and AGEE, Circuit Judges, and Eugene E. SILER,
Jr., Senior Circuit Judge of the United States Court of Appeals
for the Sixth Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Laurie Michelle Higginbotham, ARCHULETA, ALSAFFAR &
HIGGINBOTHAM, Austin, Texas, for Appellants. Anita Kay Henry,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for
Appellee. ON BRIEF: Michael Archuleta, ARCHULETA, ALSAFFAR &
HIGGINBOTHAM, Austin, Texas, for Appellants. Dana J. Boente,
Acting United States Attorney, Alexandria, Virginia, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
This case arises from a defense verdict awarded in a
medical malpractice case filed pursuant to the Federal Tort
Claims Act against the United States on the basis of treatment
received at the Naval Medical Center (“NMC”) in Portsmouth,
Virginia.1 The district court entered judgment in favor of NMC
because it found the Murphys failed to prove causation. For the
reasons set forth below we affirm the judgment of the district
court.
I.
On December 3, 2003, plaintiff Sherita Murphy went to NMC
reporting fever, cramping, vaginal bleeding and other serious
symptoms. A cursory examination of Murphy, who was twenty-six
weeks pregnant, revealed an above normal heart rate and other
symptoms indicating a bacterial infection known as
chorioamnionitis, a diagnosis that was subsequently confirmed.
About four hours after her arrival at NMC, Murphy’s
contractions were occurring every two to four minutes. Despite
the seriousness of her symptoms, however, NMC staff failed to
conduct a pelvic exam until almost seven hours after she arrived
1 For simplicity, we shall refer to the defendant as NMC
even though the named defendant is the United States.

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at the hospital. It was at this time that hospital personnel
discovered Murphy’s baby was delivering at the perineum with a
prolapsed umbilical cord. Shortly thereafter, J.M. was born —
limp, blue and without respiration or heart rate.
Despite the long wait and Murphy’s classification as high-
risk, NMC medical personnel failed to prepare adequately for the
baby’s delivery. No radiant warmer was present in the birthing
room (and one was not available until 10 minutes after J.M. was
born), no oxygen equipment had been laid out for use and
resuscitation personnel were not present.
J.M. was born with an omphalocele, a defect in which the
bowel partly forms outside the body. His “APGAR score was one
at one minute, five at five minutes, and six at ten minutes.”
J.A. 1058. At one to one-and-a-half minutes post-birth oxygen
was delivered to J.M. via a manually operated positive pressure
bag-valve mask. Medical personnel encountered difficulty
intubating J.M. because, a staff anesthesiologist noted, J.M.’s
airway was “very anterior and extremely difficult to intubate.”
J.A. 1058. It is unclear if or when the bag-valve mask was
connected to mechanical oxygen though mechanical oxygen was
administered at the time J.M. was finally intubated on the third
attempt. After intubation, J.M. experienced good chest wall
rise and equal breath sounds bilaterally. At two-and-a-half

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minutes J.M. had a heart rate of 60 beats per minute (“bpm”),
which increased to 120 bpm at four to five minutes post-birth.
J.M. suffers from cerebral palsy and has significant
developmental delays. Sherita Murphy and her husband, Jonathan
Murphy, filed suit individually and as next friends of J.M.
alleging that multiple breaches in the standard of care by NMC
personnel caused J.M.’s cerebral palsy.2
Although the parties essentially agreed that an
intraventricular brain hemorrhage most likely caused J.M.’s
cerebral palsy, they disagreed as to the cause of the
hemorrhage. The Murphys asserted that NMC’s post-delivery
At trial, the Murphys
focused on NMC’s alleged “failure to deliver the infant in an
appropriate clinical setting; i.e., in a room with appropriate
personnel and appropriate equipment for resuscitation.” J.A.
1063. NMC did not seriously contest that the hospital and its
staff breached various standards of care. Indeed, even NMC’s
expert, Dr. Dillard, agreed that the medical providers “were not
ready for this baby.” J.A. 907. Significantly, however, the
Murphys conceded that NMC medical personnel did not contribute
to J.M.’s prematurity or to his condition at the time of
delivery.
2 The Murphys sought damages for J.M.’s physical injuries
and their own damages for mental anguish and expenses resulting
from the birth of a child with cerebral palsy.

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breaches in the standard of care triggered an intraventricular
hemorrhage which caused injury to J.M.’s brain. Specifically,
the Murphys argued that J.M. suffered from hypoxia and
hypothermia brought about by negligent resuscitation and that
these two conditions caused his injuries.
NMC maintained throughout the case that despite the various
breaches of care with respect to Sherita Murphy and J.M., the
breaches did not cause J.M.’s injuries. At trial NMC maintained
that J.M. suffered neither significant hypoxia nor hypothermia
as a result of the resuscitative event and that J.M.’s
prematurity combined with Mrs. Murphy’s chorioamnionitis most
likely caused the hemorrhage and the cerebral palsy.
After a three-day bench trial, the district court
determined “that [NMC] breached the standard of care by failing
to have appropriate resuscitation equipment and personnel
immediately available upon the delivery of J.M.” J.A. 1064.
However, the district court also agreed with NMC’s expert, Dr.
Dillard, that (1) J.M. did not suffer from significant
hypothermia, (2) J.M. did not suffer a hypoxic injury, and (3)
NMC’s lack of preparation for J.M.’s delivery did not result in

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inadequate resuscitation.3
The Murphys filed a timely appeal, alleging multiple errors
by the district court. Specifically, they argue the district
court: (1) reached a verdict that is against the clear weight
of the evidence, (2) displayed bias and impermissibly restricted
their experts’ testimony, (3) improperly relied on evidence
outside of the trial record, (4) erred in excluding NMC’s
policies and procedures from evidence, (5) erroneously applied
Virginia law on the burden of proof of causation, and (6) failed
to award damages and incorrectly ruled that the Murphys were not
eligible for an award of damages in excess of the cap on damages
under Virginia law. We have jurisdiction over the appeal
pursuant to 28 U.S.C. § 1291.
Accordingly, the district court
concluded that the Murphys “have failed to prove that
defendant’s negligence was more likely than not the cause of
J.M.’s injuries.” Id. Based on these findings, the district
court entered judgment for NMC.
3 The district court also determined that even assuming J.M.
suffered from these conditions as a result of negligent
resuscitation, the Murphys “have not proved that application of
the standard of care would have prevented injury in this child,
thus clearly not meeting the ‘but for’ requirement.” J.A. 1065.

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II.
A.
The Murphys presented three experts on causation. Dr.
Leichtman, a board certified pediatrician and clinical
geneticist, testified that J.M.’s injuries were caused by
several minutes of hypoxia and hypothermia that J.M. suffered
during the resuscitation. Dr. Katz, a board certified
pediatrician and pediatric neurologist, testified that J.M.’s
injuries were caused by a “confluence of factors” around the
time of birth, including the delayed resuscitation event. J.A.
1065. Finally, Dr. Edwards-Brown, a board-certified radiologist
and neuroradiologist testified that the hemorrhaging was most
likely caused by hypoxia and hypothermia, but her opinions were
confined to the cause of the hemorrhaging, not the cause of the
hypoxia. NMC presented the testimony of Dr. Dillard, who is
board-certified in pediatrics and neonatal/perinatal medicine.
Dr. Dillard testified that J.M.’s injuries most likely resulted
from two causes: prematurity and Sherita Murphy’s
chorioamnionitis.
The Murphys assert the district court’s judgment is against
the clear weight of the evidence and on appeal they attack Dr.
Dillard’s credibility and the scientific basis for his opinions.
In essence, the Murphys complain that the testimony of their
three expert witnesses outweighs Dr. Dillard’s testimony. We

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disagree and, having reviewed the record as a whole, are of the
opinion that the district court's findings are neither clearly
erroneous, see Fed. R. Civ. P. 52(a)(6), nor against the weight
of the evidence.
Applying a clear error standard, we “will not
reverse a lower court's finding of fact simply because
we would have decided the case differently.” Easley
v. Cromartie, 532 U.S. 234 (2001) (internal quotation
marks omitted). According to the Supreme Court, we
can find clear error only if, “‘on the entire
evidence,’ [we are] ‘left with the definite and firm
conviction that a mistake has been committed.’” Id.
(quoting United States v. U.S. Gypsum Co., 333 U.S.
364, 395 (1948)). We have identified clear error when
we have determined that, “without regard to what the
actual facts may be, the findings under review . . .
are not supported by substantial evidence.” Stanley
v. Hejirika, 134 F.3d 629, 633 (4th Cir. 1998)
(internal quotation marks omitted); see United States
v. Whorley
United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010)
(alteration in original). “We review rulings on the
admissibility of scientific evidence . . . for abuse of
discretion.” United States v. Prince-Oyibo, 320 F.3d 494, 497
(4th Cir. 2003).
, 550 F.3d 326, 338 (4th Cir. 2008)
(defining “substantial evidence” as “evidence that a
reasonable finder of fact could accept as adequate and
sufficient to support” the finding under review).
The district court concluded that
[p]laintiffs’ experts provided scant explanation for
their conclusions that hypoxia and hypothermia caused
J.M.’s cerebral palsy. In contrast, defendant’s
expert, Dr. Dillard, gave detailed reasoning for his
conclusion that J.M. suffered neither a hypoxic injury
nor a hypothermic injury from the resuscitative event.
Moreover, even assuming that resuscitation-related

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hypoxia and hypothermia caused J.M.’s brain injury,
plaintiffs have not proved that application of the
standard of care would have prevented injury in this
child, thus clearly not meeting the “but for”
requirement.
J.A. 1065.
The district court found Dr. Dillard’s “testimony in
explaining the bases for his conclusions . . . to be more
credible and reliable than those of the [Murphys’] experts.”
J.A. 1066. “[W]hen a district court's factual finding in a
bench trial is based upon assessments of witness credibility,
such finding ‘is deserving of the highest degree of appellate
deference.’”4
On appeal, the Murphys reiterate on several occasions the
claim that they presented “uncontroverted testimony that the
delayed resuscitation of J.M. caused his hypoxia, which resulted
in his Grade 4 intraventricular hemorrhage.” Br. of Appellant
at 14. The testimony cited by the Murphys, however, does not
Evergreen Int’l., S.A. v. Norfolk Dredging Co., 531
F.3d 302, 308 (4th Cir. 2008) (quoting U.S. Fire Ins. Co. v.
Allied Towing Corp., 966 F.2d 820, 824 (4th Cir. 1992)).
4 We note that Dr. Dillard was the only expert whose
training and experience focused extensively on the care of sick
newborn infants with birth defects and that he has published
articles on the relationship between cerebral palsy and
prematurity. Dr. Dillard has also been involved in researching
the association between cerebral palsy and chorioamnionitis.
Clearly, we cannot say the district court erred in affording Dr.
Dillard’s testimony significant weight.

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support this conclusion. Dr. Dillard testified on cross-
examination as follows:
Q. And correct me if I’m wrong, but I believe
you testified on direct examination that
when a baby has a Grade 4 intraventricular
hemorrhage, that’s caused by low oxygen and
low blood pressure?
A. I think those are two things that could
definitely be associated with a Grade 4
hemorrhage.
J.A. 899 (emphasis added). This testimony by Dr. Dillard does
not address the Murphys’ contention that a delay in
resuscitation by NMC personnel caused hypoxia and J.M.’s brain
hemorrhage. To the contrary, Dr. Dillard explicitly testified
on direct examination as follows:
Q. In your opinion did J.M. sustain any injury
— well, first of all did J.M. have hypoxia?
A. No. Well, let me put it another way. I’m
sure, just as most babies did, he had
hypoxia at birth which is almost universal,
but the big question is did he have hypoxia
to the extent that it caused injury.
Q. Did he?
A. No, he did not.
J.A. 880.
Dr. Dillard reiterated this point on cross-examination:
Q. And you agree that hypoxia makes it more
likely that a baby will have
intraventricular hemorrhage?
A. Again, it’s a matter of degree of hypoxia.
As I explained earlier, all babies have some

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degree of hypoxia at birth, but of course
all babies who are born prematurely and have
hypoxia at birth don’t develop
intraventricular hemorrhage. It takes a
significant degree of hypoxia to result in
interventricular hemorrhage, and my
contention is that this baby did not have
significant hypoxia.
J.A. 902-03.
Dr. Dillard’s conclusion that J.M. did not suffer a lack of
oxygen significant enough to cause his brain hemorrhage and his
resulting deficits is fully supported by the record. As the
district court explained:
Plaintiffs have not proved by a preponderance of
the evidence that application of the standard of care
would have prevented any hypoxic injury that J.M. may
have had. Plaintiffs experts testified that medical
providers breached the standard of care by failing to
have oxygen available at the moment of birth and
failing to have “adequate” resuscitation personnel and
equipment present at birth. Oxygen was however
available at approximately one minute of life and the
medical record discloses that positive pressure
ventilation with bag-valve mask was begun immediately
thereafter. The Court is troubled that plaintiffs’
experts glossed over this early access to oxygen as if
it could be ignored, indicating that four to five
minutes passed before oxygen of sufficient quantity
was administered. Given that the plaintiffs’ experts
did not address the bag-valve provision of oxygen,
there is no testimony that this early provision of
oxygen was insufficient for the purposes of preventing
brain damage. Importantly, there is no evidence in
the testimony or expert reports of the plaintiffs
regarding the period of time that a neonate can
sustain hypoxia without suffering brain injury.
J.A. 1076.

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Although the Murphys acknowledge on appeal that “[o]xygen
was not available to the baby until one minute of life, and was
not provided via bag-valve-mask until 1½ to 2 minutes of life,”
they nonetheless draw the conclusion, entirely unsupported by
their experts’ testimony, that “[s]ince no oxygen was getting to
his brain during this time period, J.M.’s brain hemorrhaged and
was permanently damaged.” Br. of Appellant at 5 (internal
citation omitted). Only one of the Murphys’ experts, Dr.
Leichtman, broached the subject by testifying that “we generally
like to get a resuscitation event over by one to three minutes.”
J.A. 611. As the district court explained, Dr. Leichtman did
not testify that this threshold was significant enough to cause
injury to a baby generally or to J.M. in particular. Moreover,
Dr. Dillard stated that while adults can sustain brain injury
after “just a minute or two or three,” premature infants like
J.M. could withstand injury from a lack of oxygen for “somewhat
longer.” J.A. 880.
In addition to countering the Murphys’ experts’ conclusions
that hypoxia and hypothermia caused J.M.’s injuries, Dr. Dillard
testified extensively about the causes of J.M.’s impairments.
With considerable explanation Dr. Dillard concluded that “[a]
variety of complications that are related to prematurity were
significantly additive in the causation of [J.M.’s] cerebral
palsy.” J.A. 854. He also offered his opinion that “[t]he

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mother’s chorioamnionitis is strongly associated with the
development of . . . Grade 4 hemorrhage[s] . . . .” J.A. 838.
According to Dr. Dillard, various studies demonstrate that the
association is “very statistically significant; meaning that
there’s less than a one-in-20 chance of there being, this
occurring by chance alone.” J.A. 838.
Not only did Dr. Dillard offer his own causation testimony
with respect to prematurity and chorioamnionitis, he
specifically rebutted the causation testimony offered by the
Murphys’ experts. The district court found this testimony
credible and persuasive.
Our system of justice rests on the general
assumption that the truth is not to be determined
merely by the number of witnesses on each side of a
controversy. In gauging the truth of conflicting
evidence, [the factfinder] has no simple formulation
of weights and measures upon which to rely. The
touchstone is always credibility; the ultimate measure
of testimonial worth is quality and not quantity.
Triers of fact in our fact-finding tribunals are, with
rare exceptions, free in the exercise of their honest
judgment, to prefer the testimony of a single witness
to that of many.
Weiler v. United States, 323 U.S. 606, 608 (1945).
In short, the record contains ample evidence to support the
district court’s factual, legal and credibility determinations.
Accordingly, we find no error.

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B.
The Murphys next assert that the district court harbored a
bias in favor of NMC and against them, their experts, and
medical malpractice suits generally. In support of this
assertion they cite various rulings and statements by the
district court as evidence of bias. As NMC points out, however,
the Murphys never made a motion for recusal pursuant to 28
U.S.C. § 455, which requires a judge to “disqualify himself in
any proceeding in which his impartiality might reasonably be
questioned” or “[w]here he has a personal bias or prejudice
concerning a party, or personal knowledge of disputed
evidentiary facts concerning the proceeding.” 28 U.S.C. 455(a)-
(b)(1).
“The rule that an objection must be timely raised with the
trial court to preserve the right of appellate review is
elementary, and it is of long standing.” United States v.
Godwin, 272 F.3d 659, 672 (4th Cir. 2001). In this case, the
Murphys failed to raise most of these issues with the district
court and made no motion for recusal based on any alleged bias.
Therefore, except for evidentiary rulings subject to a proper
objection, any alleged errors are subject to plain-error review.
See, e.g., United States v. Berger, 375 F.3d 1223, 1227 (11th
Cir. 2004) (“Ordinarily, we review a judge's decision not to
recuse him or herself for an abuse of discretion. However,

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because [appellant] failed to seek recusal of the district judge
in the proceedings below, we review his recusal request for
plain error.”) (internal citation omitted); United States v.
Cruz-Mercado, 360 F.3d 30, 36 (1st Cir. 2004) (“[Appellant]
neither objected to the[] comments nor sought recusal of the
trial judge based on partiality, limiting our review to
assessing only whether plain error occurred.”).
Aside from several instances in which the district court
restricted their admission of evidence or dealt with Murphys’
counsel in what the Murphys consider a brusque, impatient or
sarcastic manner (unreasonably in the Murphys’ view), they offer
only one specific statement by the district court that
demonstrates a potential bias. In that instance the district
court expressed its awareness of several doctors who had left
the profession because of rising medical malpractice premiums.
During a conversation with the Murphys’ counsel concerning the
court’s refusal to admit NMC’s policies and procedures into
evidence, the district court made the following statement:
The Court: And consequently in that
particular case, the trial judge
felt under his discretion that he
could admit that particular rule.
So far as it’s discretionary I
wouldn’t admit it, because what I
think is the standard is going to
have to be the standard
established for all the particular
profession or the industry itself.
If we start on this, then what we

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do is we actually get — I think
oftentimes we get so often
enmeshed in these things, I think
it’s important to understand that
if you establish such a thing,
what you do is decry people from
making rules that are beneficial
and you decry industries or
companies from doing it. And
it’s, there is no question you do.
Because once a lawyer’s [sic] get
ahold of it they say don’t make a
rule, don’t do this, don’t do
that, you’re going to get sued.
As it is right now, where are we
with obstetricians? I think at
least three of them I know have
quit the profession because of the
cost on the malpractice coverage
which is 90-some thousand dollars
a year.
J.A. 748 (emphasis added). The district court’s statement does
not constitute plain error for several reasons.
The Supreme Court explained in Liteky v. United States, 510
U.S. 540 (1994), that
judicial rulings alone almost never constitute a valid
basis for a bias or partiality motion. See United
States v. Grinnell Corp., 384 U.S., at 583. In and of
themselves (i.e., apart from surrounding comments or
accompanying opinion), they cannot possibly show
reliance upon an extrajudicial source; and can only in
the rarest circumstances evidence the degree of
favoritism or antagonism required (as discussed below)
when no extrajudicial source is involved. Almost
invariably, they are proper grounds for appeal, not
for recusal. Second, opinions formed by the judge on
the basis of facts introduced or events occurring in
the course of the current proceedings, or of prior
proceedings, do not constitute a basis for a bias or
partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment
impossible. Thus, judicial remarks during the course

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of a trial that are critical or disapproving of, or
even hostile to, counsel, the parties, or their cases,
ordinarily do not support a bias or partiality
challenge. They may do so if they reveal an opinion
that derives from an extrajudicial source; and they
will do so if they reveal such a high degree of
favoritism or antagonism as to make fair judgment
impossible.
Id.
The district court’s statement was made in the context of
explaining its ruling refusing to admit NMC’s policies and
procedures. According to the district court, such materials do
not constitute the standard of care in the industry but instead
reflect the aspirational goals of the organization. In
explaining its ruling to counsel, the district court was stating
its belief that hospitals would not adopt such policies for fear
of having them used at trial to establish a breach in the
standard of care when, in fact, the standard of care reflects
the standard in the medical community as a whole, not the
standard at a particular institution.
at 555 (emphasis added).
Immediately after making the statement the district court
elaborated that
the question here in my mind is simple: Has the
Portsmouth Naval Hospital violated the standards that
are generally acceptable among the medical profession
at the time and place of the incident in question?
And did it cause the injuries of the plaintiff? And
if so, to what extent? That’s what we’re really doing
here.

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J.A. 749. This statement by the district court makes clear that
it was mindful of its duties and was entirely capable of
rendering fair judgment. There is simply nothing in the record
indicating that the district court held “a deep-seated
favoritism or antagonism [towards the Murphys] that would make
fair judgment impossible.” Liteky, 510 U.S. at 555.
Our review of the record also leads to the conclusion that
no error occurred with respect to the remaining conduct cited by
the Murphys as examples of bias. Though some comments by the
district court might be considered “stern and short-tempered,”
they fall within the categories of statements that will not
constitute bias. Liteky, 510 U.S. at 556; see also id. at 555-
56 (“Not establishing bias or partiality, however, are
expressions of impatience, dissatisfaction, annoyance, and even
anger, that are within the bounds of what imperfect men and
women, even after having been confirmed as federal judges,
sometimes display. A judge's ordinary efforts at courtroom
administration-even a stern and short-tempered judge's ordinary
efforts at courtroom administration-remain immune.”).
C.
The Murphys also claim they are entitled to a new trial
because the district court relied on evidence outside the trial
record.

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We have granted a new trial “only in the most extreme
of cases” where a judge demonstrated personal bias
against a litigant because of reliance on
extrajudicial sources. Aiken County v. BSP Div. of
Envirotech Corp., 866 F.2d 661, 678 (4th Cir. 1989);
see generally Crandell v. United States, 703 F.2d 74,
75-76 (4th Cir. 1983). And a court's consideration of
material outside the record does not generally raise
issues of constitutional magnitude. See Aiken
County, 866 F.2d at 678 (“We do not think, however,
that the two memoranda received by the judge and the
ancillary ex parte
ePlus Tech., Inc. v. Aboud, 313 F.3d 166, 178–79 (4th Cir.
2002).
contacts in this case approach the
magnitude of constitutional error.”).
As with the Murphys’ previous allegations of bias by the
district court, the record shows that they did not object when
the trial judge informed them that he would be looking up the
experts on the Internet to see “[w]hat their field of expertise
is, what they have written, what they have not written.” J.A.
95. Having failed to object, the question becomes whether the
trial court’s doing so (or at least saying it was going to do
so) constitutes plain error. It does not. The most obvious
reason no substantial error occurred is because, as NMC notes,
the district court indicated it was going to review information
on all the experts, not just the Murphys’ witnesses. Moreover,
the Murphys have made no showing of any prejudice by virtue of
the district court’s research, if indeed it occurred.
The Murphys also object to various other statements by the
district court indicating an effort to read the materials

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provided by the parties and referenced by the experts. Having
reviewed these statements, we conclude they indicate little more
than a diligent effort by the district court to absorb the vast
amounts of medical information referenced or relied upon by the
parties’ experts. Conduct the Murphys consider “prejudicial,”
we believe illustrates conscientious attention to the district
court’s duties. Indeed, the Murphys concede that “[w]hen a fact
finder relies on outside evidence, for the alleged bias and
prejudice to be disqualifying, it must stem from an
extrajudicial source and result in an opinion on the merits on
some basis other than what the judge learned from his
participation in the case.” Br. of Appellant at 35 (emphasis
added). The Murphys do not cite one statement in the district
court’s opinion as an example of “misconduct” and our review of
the record reveals that the district court undertook its role as
fact-finder quite seriously. Regardless of what materials it
may have considered, its opinion falls easily within the
confines of the evidence presented at trial.
D.
The Murphys further contend the district court erred in
refusing to admit excerpts of NMC’s labor and delivery manuals
on the limited issue of causation. Relying on Riverside
Hospital, Inc. v. Johnson, 636 S.E.2d 416 (Va. 2006), they
assert that Virginia law allows the admission of a hospital’s

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written policies and procedures for such a limited purpose. We
disagree.
In 1915 the Supreme Court of Virginia held that
[a] person cannot, by the adoption of private rules,
fix the standard of his duty to others. That is fixed
by law, either statutory or common. Private rules may
require of employ[e]es less or more than is required
by law; and whether a given course of conduct is
negligent, or the exercise of reasonable care, must be
determined by the standard fixed by law, without
regard to any private rules of the party.
Virginia Ry. & Power Co. v. Godsey, 83 S.E. 1072, 1073 (Va.
1915); see also Pullen v. Nickens, 310 S.E.2d 452, 457 (Va.
1983) (reaffirming Godsey and holding that State Highway
Department’s internal rules were inadmissible). This Court has
previously recognized Virginia’s longstanding rule in this
regard and determined that “the Virginia rule is sufficiently
bound-up with state policy so as to require its application in
federal court.” Hottle v. Beech Aircraft Corp., 47 F.3d 106,
110 (4th Cir. 1995).5
5 The Murphys argue that we should review the district
court’s refusal to admit the policies and procedures de novo.
NMC asserts that the district court’s refusal to admit the
material constitutes a ruling on the admissibility of evidence
that is reviewed for an abuse of discretion. Because we have
already determined that Virginia’s preclusion of “policies and
procedures,” albeit evidentiary in nature, is substantive, our
“review of a district court's interpretation or application of
state law is de novo.” Bryte ex rel. Bryte v. Am. Household,
Inc., 429 F.3d 469, 475 (4th Cir. 2005) (citing James v.
Circuit City Stores, Inc., 370 F.3d 417, 421-22 (4th Cir.
2004)).

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Even though the Murphys allege that they sought to
introduce NMC’s policies and procedures “for the limited purpose
of establishing causation,” they admit seeking the introduction
of such evidence “because these manuals clearly establish that
Government providers knew the standard of care would prevent the
injury suffered by J.M.” Br. of Appellants at 39. The Murphys
also assert that in Riverside the Supreme Court of Virginia
“ruled that the defendant hospital’s policies and procedures
were admissible over the same objection offered by [NMC] in this
case.” Br. of Appellants at 43.
As an initial matter, because the procedure manuals cannot
be introduced to establish the standard of care, we fail to see
how the information could show the “providers knew the standard
of care” in the community as a whole would have prevented J.M.’s
injuries. Moreover, Riverside does not stand for the
proposition asserted by the Murphys because that case did not
involve the hospital’s “policies and procedures.” As the
Supreme Court of Virginia plainly stated, “the evidence of the
staff orientation instruction and nursing curriculum, although
dealing with the issue of fall-risk assessment and prevention,
were not hospital policies or procedures of the type involved in
Godsey and Pullen.” Riverside, 636 S.E.2d at 422. In this case
the Murphys sought to introduce excerpts from NMC’s labor and
delivery policy manuals which they admit constitute NMC’s

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“policy and procedure manuals.” Br. of Appellants at 39.
Accordingly, the district court correctly interpreted Virginia
law and did not err by excluding this evidence.
E.
The final claim of error we must consider is the Murphys’
claim that the district court erroneously applied Virginia law
on the burden of proof of causation. They stress that under
Virginia law they were only required to prove it was more likely
than not that NMC’s negligence was a cause of J.M.’s injuries,
not that it was the sole cause. In other words, the Murphys
argue they were “not required to prove that hypoxia was ‘the
only’ cause of J.M.’s injuries, [but] rather ‘a’ cause of J.M.’s
injuries.” Br. of Appellants at 50. The parties agree that our
review of the district court’s application of state law is de
novo. See note 5, supra.
The obvious problem for the Murphys is that, in the
district court’s view, they failed even to prove that hypoxia
was “a” cause of J.M.’s deficits, much less “the” cause. As the
district court explained: “Dr. Dillard concluded that J.M. was
not exposed to a significant enough deprivation of oxygen during
the resuscitation event to cause a hypoxic injury in the brain.”
J.A. 1072 (emphasis added). According to the district court, it
“believed the testimony of Dr. Dillard while rejecting the

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conclusions of the [Murphys’] experts.” Id. Based on these
factual findings, the district court concluded that
[t]he reports and testimony [of the Murphys’ experts]
provided little in the way of any explanation or basis
for their opinions that hypoxia and hypothermia
resulted from defendant’s failure to follow the
standard of care for resuscitations, ultimately
causing J.M.’s cerebral palsy. The Court hereby finds
that [the Murphys’] experts’ conclusions on the
standard of care are credible, but further finds their
conclusions on causation not credible.
J.A. 1078.
We agree with NMC that “[a]bsent credible proof of this
essential factual predicate, any discussion of Virginia law on
causation is irrelevant.” Br. of Appellee at 54. We therefore
conclude the district court did not err.6
III.
Having reviewed the record, the parties' briefs, and the
applicable law, and having had the benefit of oral argument, we
find no error and, for the reasons stated herein, affirm the
judgment of the district court.
AFFIRMED
6 The Murphys make two final challenges to the district
court’s verdict in favor of NMC. They assert the district court
erred by (1) failing to award damages and (2) ruling that their
claims were subject to Virginia’s cap on damages for medical
malpractice awards. In light of our conclusion that the
district court did not err in entering judgment for NMC, we need
not address these issues.

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