ROMAN SZYJKA, Individually; ROMAN AND PAULA SZYJKA, As Husband and Wife v. Peter Vandermeer, M.d.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1439
ROMAN SZYJKA, Individually; ROMAN AND PAULA SZYJKA, As
Husband and Wife,
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Affirmed by unpublished per curiam opinion.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,

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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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Appellants Roman Szyjka and Paula Szyjka brought this
medical-malpractice action against Dr. Peter Vandermeer and
others, alleging that Dr. Vandermeer improperly failed to
identify an abnormality in Mr. Szyjka’s brain. A jury trial
resulted in a defense verdict. 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. United States v. Garcia, 752 F.3d 382,
390 (4th Cir. 2014). “The proponent of the testimony must
establish its admissibility by a preponderance of 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”). Our review of the joint appendix filed by the
parties on appeal leaves us without doubt that the district
court did not abuse its discretion in finding that the Szyjkas

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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). “So long as the charge is accurate on the
law and does not confuse or mislead the jury, it is not
erroneous.” 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.” Id. at 1293. We
conclude that, taking the jury instructions as a whole, 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).

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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 with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED

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