UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TROY G. THOMAS,
Plaintiff-Appellant,

v.

WASHINGTON INDUSTRIAL MEDICAL
CENTER, INCORPORATED, a/k/a WIMC,
Defendant-Appellee,
                                                                        No. 98-1652
and

R. F.DEL ROSARIO, M.D.,
Individually and in his capacity as
employee for WIMC; ROSITA H.
DEE, M.D., P.A.,
Defendants.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CA-95-416-DKC)

Argued: April 6, 1999

Decided: July 19, 1999

Before WIDENER, MURNAGHAN, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: George Livingston Garrow, Jr., GARROW & EVANS,
L.L.P., Washington, D.C., for Appellant. Alfred Francis Belcoure, II,
MONTEDONICO, HAMILTON & ALTMAN, P.C., Washington,
D.C., for Appellee. ON BRIEF: Thomas C. Mugavero, MONTE-
DONICO, HAMILTON & ALTMAN, P.C., Washington, D.C., for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Troy Thomas sued the Washington Industrial Medical
Center ("Medical Center") and Drs. Rolando del Rosario and Rosita
Dee for allegedly negligent care following a head injury he sustained
while working. He argues that Defendants violated the proper stan-
dard of care by failing to order certain diagnostic tests earlier. He
maintains that, had Defendants ordered the proper tests, his subse-
quent brain hemorrhage would have been avoided. The district court
granted summary judgment in favor of Drs. del Rosario and Dee and,
at the close of Plaintiff's case, judgment as a matter of law in favor
of the Medical Center. Thomas now appeals the judgments in favor
of Dr. del Rosario and the Medical Center. Finding no reversible
error, we affirm the district court's decision.

I.

In October 1990, Appellant Troy Thomas was employed as a mail-
handler at a post office station in Washington, D.C. His job was to
remove sacks of mail from trucks and place them on conveyor belts
that then dropped the sacks into cages. During the night shift on Octo-
ber 23, 1990, the gate of one of the cages flew open and hit Thomas
on his forehead, where he sustained a small abrasion and contusion.
Accompanied by a co-worker, Thomas went to the health unit at the
post office where a nurse examined him. The nurse determined that
Thomas should go to the Medical Center1 for further examination and
treatment, which he did.
_________________________________________________________________
1 Washington Industrial Medical Center, which at the time of trial was
known as "Concentra," is a clinic located in Cheverly, Maryland. It pro-

                    2
Thomas arrived at the Medical Center shortly before 2:30 a.m. on
October 23. Carlton Romney was the physician's assistant on duty.
Romney asked Thomas a series of questions, including basic inquiries
regarding personal identification (e.g. name, address, date of birth)
and the nature of the visit. According to Romney, Thomas exhibited
no identifiable neurological abnormalities. He followed all instruc-
tions during the examination; his speech was clear; and he appeared
to be coherent. In addition, the medical records suggest that Thomas
indicated that he had not lost consciousness. Romney cleaned
Thomas' wound with peroxide and applied bacitracin and a bandage
to cover the area.

After his examination and treatment, Romney gave Thomas a typed
instruction sheet for Thomas' follow-up care. Romney explained the
instructions to Thomas and described warning signs for which
Thomas should watch. Romney advised Thomas to return to the Med-
ical Center to be seen by a physician later that same day. Thomas
signed documents indicating that he understood everything Romney
had told him, and Romney released Thomas to return to work for the
rest of his shift. Romney then called the post office health unit and
informed the nurse of his diagnosis and instructions for Thomas'
follow-up visit.

Thomas returned to work and, upon arrival, went to the health unit.
He gave the nurse the documents Romney had given him and told her
that he was to return to the Medical Center that day. The nurse com-
pleted a medical report that included his diagnosis, work status, and
follow-up visit. Thomas then completed his shift but did not return to
the Medical Center that day.

Sixteen days later, on November 8, 1990, Thomas returned to the
health unit, complaining of a headache and dizziness. When the nurse
asked Thomas if he had returned to the Medical Center, he told her
that he had not. The nurse took his vital signs and concluded there
were no acute symptoms. She gave him some Tylenol, put him on a
less strenuous work assignment for the balance of the shift, and told
_________________________________________________________________
vides health services to employees for work-related health needs, includ-
ing the treatment of work-related injuries.

                    3
him to return at 7 a.m. for follow-up instructions. Thomas did not
return.

Seven days later, on November 15, Thomas again went to the
health unit and complained of a headache. The nurse gave him
Tylenol and told him to go to the Medical Center that day. Once
again, Thomas failed to comply with the instructions.

The next day, Thomas again contacted the nurse at the health unit.
The nurse told him that he must go to the Medical Center and obtain
a medical certificate confirming that he had been there for treatment.
Thomas returned to the Medical Center that day and complained of
continued, severe headaches. Dr. del Rosario performed a neurologi-
cal examination and found no evidence of any abnormalities. Because
Thomas was reporting headaches three and one-half weeks after his
accident, however, Dr. del Rosario recommended that Thomas see a
neurologist. Accordingly, Dr. del Rosario referred Thomas to Dr.
Dee.

On November 23, Dr. Dee performed a neurological examination
of Thomas, the results of which were within normal limits. Because
of Thomas' report of headaches, however, Dr. Dee scheduled a com-
puted tomography (CT) scan and an electroencephalogram (EEG) of
Thomas to take place on November 26 and November 27. Thomas
failed to keep either appointment.

On November 30, 1990, Thomas was admitted to the emergency
room at Prince George's Hospital Center, after exhibiting unusual
behavior. The attending physician at the hospital ordered a CT scan.
The results of the scan indicated a condition "suggestive of mild
hydrocephalus," or pressure due to fluid in the brain. The eventual
diagnosis was acute hydrocephalus with intra ventricular hemorrhage
(bleeding in the brain). To release the fluid in Thomas' brain, the
attending doctor inserted a catheter into the brain. As a result of the
procedure, Thomas suffered further bleeding in the brain. The hemor-
rhage gradually resolved, and the doctor removed the catheter when
Thomas became stabilized. Thomas improved slowly and was dis-
charged from the hospital on December 22, 1990.

Thomas has encephalomalacia (a softening) in the right parietal
portion of his brain. Since his surgery, Thomas continues to experi-

                    4
ence intermittent headaches, which his current treating physician has
diagnosed as migraines. He has had several neurological and diagnos-
tic examinations which, with the exception of the encephalomalacia,
have revealed no abnormalities.

Alleging negligence, Thomas filed suit in October 1993 in federal
district court2 against the Medical Center, Dr. del Rosario, and Dr.
Dee. Thomas charged that (1) Carlton Romney, the physician's assis-
tant who treated Thomas on October 23, 1990, breached the relevant
standard of care by failing to order pertinent diagnostic tests and/or
an x-ray of Thomas' head and failing to provide proper follow-up
care; (2) Dr. del Rosario, who treated Thomas on November 16, 1990,
also breached the applicable standard of care because he did not order
an immediate CT scan, magnetic resonance imaging (MRI), or x-ray
but instead referred Thomas to Dr. Dee, a neurologist; and (3) Dr.
Dee, who saw Thomas on November 23, 1990, breached the standard
because she arranged for a CT scan of Thomas to occur on November
26, 1990, rather than immediately.

Drs. del Rosario and Dee moved for summary judgment. The court
granted the motion, determining that no reasonable jury could find
that either doctor had committed malpractice in rendering treatment
to Thomas. The court's ruling left for trial the allegation that Romney,
the physician's assistant employed by the Medical Center, had com-
mitted medical malpractice with respect to the treatment he provided
Thomas in October 1990.

The case then proceeded to trial. At the close of Thomas' case, the
court entered judgment as a matter of law in favor of the Medical
Center. The court ruled, in part, that the evidence did not establish
that Thomas' current condition, or brain damage, was the proximate
result of the Medical Center's treatment of Thomas.
_________________________________________________________________
2 The case was initially filed in the District Court for the District of
Columbia, which transferred the case to the District of Maryland on
grounds of forum non conveniens. The District Court for the District of
Maryland then issued an Order staying the action, in order to allow
Thomas to pursue his claim before the Maryland Health Claims Arbitra-
tion Office. Due to delay, Appellees elected to waive arbitration and, in
February 1997, asked the court to reopen the case.

                    5
This appeal followed. Appellant charges that the district court erred
in granting the Medical Center judgment as a matter of law at the
close of Thomas' case and Dr. del Rosario summary judgment prior
to trial.3 Appellant also asserts that the district court abused its discre-
tion by excluding certain testimony. We find Appellant's claims to be
without merit and, therefore, affirm the district court's decision.

II.

A. Judgment as a Matter of Law in Favor of the Medical Center

Appellant charges that the district court erred in concluding that, as
a matter of law, there could be no finding of negligence with respect
to the Medical Center's delivery of care to Thomas. We review the
court's grant of the Medical Center's motion for judgment as a matter
of law de novo, see Malone v. Microdyne Corp., 

, 475
(4th Cir. 1994), viewing the evidence in the light most favorable to
Thomas. See 

"Judgment as a matter of law is proper
`when, without weighing the credibility of the evidence, there can be
but one reasonable conclusion as to the proper judgment.'" Price v.
City of Charlotte, 

, 1249 (4th Cir. 1996), cert. denied,

(1997).

Under Maryland law,4 the general principles which govern negli-
gence cases ordinarily also apply in medical malpractice claims. See
Franklin v. Gupta, 

, 528 (Md. Ct. Spec. App.), cert.
denied, 

(Md. 1990). A hospital or other health care
facility will be held vicariously liable for the negligent acts of its
employees, including physicians, nurses, and other medical and non-
medical personnel. See 

order to state a prima facie claim
for medical malpractice, a plaintiff must (1) establish the applicable
_________________________________________________________________
3 Appellant Thomas has not appealed the district court's ruling in favor
of Dr. Dee.
4 The district court, in a diversity action, is bound to apply the substan-
tive law of Maryland. See Hanna v. Plumer, 

, 471 (1965).
While the substantive elements of the medical malpractice claim are
defined by Maryland law, whether Thomas presented sufficient evidence
to create a jury issue as to those substantive elements "is controlled by
federal rules." Fitzgerald v. Manning, 

, 346 (4th Cir. 1982).

                     6
standard of care; (2) demonstrate that the health care facility, or its
employee, violated the standard; and (3) develop a causal relationship
between the violation and the alleged harm. See 

also
Weimer v. Hetrick, 

, 651 (Md. Ct. Spec. App. 1987).
Appellant Thomas urges that he has satisfied all three elements.

First, Thomas' expert witness, Dr. Maxfield, who is a radiologist,
testified that "[t]he standard of care for a head injury is to obtain a CT
image of the brain and then to have close follow-up of the individual
with subsequent CTs and close monitoring of the individual to put
them at rest." Dr. Maxfield continued: "For th[e] night [of Thomas'
injury], [the standard of care] would have been to request a CT scan
of the brain to be performed and to have established a protocol to be
followed for the monitoring and future care of the patient."

Second, Thomas maintains that he provided ample evidence to
establish that Defendants breached the relevant standard of care.
Defendants, Thomas argues, failed to perform any diagnostic studies
and failed to provide proper follow-up treatment for a head injury
patient, which arguably includes ensuring that the patient, or someone
close to the patient, understood the nature and extent of the injury. Dr.
Maxfield opined that "the care and treatment rendered to Mr. Thomas
[by the Medical Center on the night he sustained his injury] was
below the usual and customary standard of care."

Assuming, without deciding, that the expert witness adequately
described the standard of care and that Thomas established a breach
of that standard, no reasonable juror could conclude from the evi-
dence in record that the breach was the proximate cause of Thomas'
encephalomalacia and periodic headaches. First, even if there had
been an immediate CT scan performed on Thomas, there is no evi-
dence that the bleeding had started at that point and, therefore, no evi-
dence that the scan would have revealed the presence of any bleeding.
Furthermore, even if bleeding had been present, a CT scan performed
at the time of the accident may not have detected any abnormalities.
Second, the record shows that additional hemorrhaging occurred as a
result of Thomas' surgery on November 30; the surgery-related bleed-
ing could have been the cause of Thomas' current condition. Finally,
Thomas' own conduct, i.e., his failure to keep follow-up appoint-

                     7
ments, may have served as a concurrent cause of his injury.5 See

(determining that patient's "failure to return for
further treatment as instructed constituted contributory negligence
`preventing recovery for injurious consequences from such failure'");

("`A patient who, after receiving treatment,
fails to return to the physician or surgeon for further treatment, as
instructed, is guilty of contributory negligence preventing recovery
for injurious consequences from such failure.'"). Thomas was under
specific and repeated instructions to return to the Medical Center for
further treatment. Assuming the bleeding existed during the initial
weeks after the accident, Thomas directly contributed to his injury by
precluding diagnosis and treatment at a time when his condition was
treatable.

As support for the contention that there may have been some other
cause of Thomas' injuries besides the alleged negligence of the Medi-
cal Center, we need look no further than Appellant's own witnesses.
Dr. Maxfield did not testify that Thomas' current condition was the
proximate result of the Medical Center's treatment. Indeed, Dr. Max-
field could not say if Thomas' injury was due to the original head
injury or to subsequent developments. Moreover, Dr. Michael
Batipps, Thomas' treating neurologist, specifically linked Thomas'
_________________________________________________________________
5 In order for a plaintiff to be found contributorily negligent, he must
either (1) intentionally and unreasonably expose himself to danger cre-
ated by the defendant's negligence, of which danger the plaintiff knows
or has reason to know, or (2) act in a way that falls short of the standard
to which the reasonable person should conform in order to protect him-
self from harm. See Myers v. Estate of Alessi , 

, 63 (Md. Ct.
Spec. App.), cert. denied, 

(Md. 1989). Appellant argues
that contributory negligence, if present at all, is a jury question. See
Chudson v. Ratra, 

, 173 (Md. Ct. Spec. App. 1988) ("The
absence or presence of contributory negligence is generally a question
for the jury."), cert. denied, 

(Md. 1989). However, "when
the minds of reasonable persons cannot differ ... the court is justified in
deciding the question as a matter of law." 

no factual
dispute as to whether Thomas returned for follow-up care. He did not
return to the Medical Center, even though he was instructed to do so on
multiple occasions, until the nurse at the post office health unit insisted
he do so. Since this fact is undisputed, it was appropriate for the court
to resolve the issue as a matter of law.

                    8
headaches to the original head injury. He could not testify with cer-
tainty as to the effect of any subsequent events on Thomas' current
condition. If the medical experts cannot form an opinion with suffi-
cient certainty so as to make a medical judgment, we surely cannot
expect a jury to make a decision with sufficient certainty so as to
make a legal judgment.

Without evidence that, more likely than not, the failure to perform
a CT scan or other diagnostic test on October 23, 1990 was the proxi-
mate cause of Appellant's injury, Thomas' claims against the Medical
Center cannot survive Defendants' motion for judgment as a matter
of law. See 

("[W]here there are a number
of possible causes for a plaintiff's disability, the physician's negli-
gence will be regarded as the proximate cause only if the evidence is
that it is `more likely' or `probable' that his negligence was such
cause than the other possible causes."); see also 

("`If the evidence shows that an injury may have resulted from
one of several causes, but only one of the causes can be attributed to
the defendant's negligence, the plaintiff must fail.'"). The district
court's grant of the motion was, therefore, proper.

B. Summary Judgment in Favor of Dr. del Rosario

The district court determined prior to trial that, as a matter of law,
Thomas could not prove his case as to any negligent act allegedly
committed by Dr. del Rosario. Appellant maintains that based on the
expert testimony of Dr. Maxfield and the requirement that all infer-
ences be drawn in his favor, summary judgment was inappropriate.
We review the district court's summary judgment determination de
novo, considering the evidence in the light most favorable to the los-
ing party. See Henson v. Liggett Group, Inc., 

, 274, 275
(4th Cir. 1995). Once the moving party discharges its burden "by
showing ... that there is an absence of evidence to support the non-
moving party's case," Celotex Corp. v. Catrett, 

, 325
(1986), the nonmoving party then "must come forward with `specific
facts showing that there is a genuine issue for trial.'" Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 

, 587 (1986) (emphasis
in original); Fed. R. Civ. P. 56(c) (noting that summary judgment is
appropriate where "there is no genuine issue as to any material fact
and ... the moving party is entitled to a judgment as a matter of law").

                    9
Summary judgment will be granted unless a "fair-minded jury could
return a verdict for the [nonmoving party] on evidence presented."
Anderson v. Liberty Lobby, Inc., 

, 247-48, 252 (1986).

Again, Appellant's evidence on causation is insufficient to estab-
lish, more likely than not, that an act or omission of Dr. del Rosario
either contributed to Thomas' hemorrhaging or to the alleged delay
in its discovery. Indeed, according to the evidence, Thomas' bleeding
may have had its onset after he saw Dr. del Rosario, or may have
arisen from the delay caused by his own failure to keep his appoint-
ments for the diagnostic tests that Dr. Dee had scheduled for him.6
Under the circumstances, no jury could reasonably conclude that
Thomas met his burden on causation. The district court's grant of
summary judgment was, therefore, appropriate.

C. Exclusion of Certain Testimony

Finally, Appellant Thomas challenges the district court's exclusion
of certain testimony elicited from Dr. Maxfield and Carlton Romney.
We review the district court's decision to exclude testimony for abuse
of discretion. See Tyger Construction Co., Inc. v. Pensacola Con-
struction Co., 

, 142 (4th Cir. 1994), cert. denied, 

(1995).

At trial, Plaintiff asked Dr. Maxfield whether the CT scan would
have revealed Thomas' brain injury if it had been taken on October
23, 1990. The district court sustained Defendants' objection to the
question. Appellant maintains that the testimony was appropriate
under Federal Rule of Evidence 702,7 since it would "assist the trier
_________________________________________________________________
6 We recognize the evidence in the record that indicates that it is not
unusual for an individual who has endured a head injury to become for-
getful. There is no record evidence, however, supporting the notion that
Thomas' failure to return to the Medical Center for follow-up care was,
in fact, due to his injury. Furthermore, Romney took reasonable steps to
mitigate against such memory loss: he gave Thomas written instructions,
as well as called the post office's health unit to inform the nurse of
Thomas' diagnosis and prescribed follow-up care.
7 Federal Rule of Evidence 702 provides as follows: "If scientific, tech-
nical, or other specialized knowledge will assist the trier of fact to under-
stand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise." Fed. R. Evid. 702.

                    10
of fact to understand the evidence or to determine a fact in issue."
Fed. R. Evid. 702.

Appellee correctly retorts, however, that there was no factual foun-
dation on which Dr. Maxfield's opinion could rest, making the testi-
mony irrelevant. The evidence indicated that an immediate CT scan
may not have shown the presence of bleeding, and there was no evi-
dence that there was, in fact, any bleeding on October 23, 1990. Any
opinion, even that of a witness with Dr. Maxfield's experience and
training in diagnostic procedure, would have been wholly speculative.
See Tyger 

("An expert's opinion should
be excluded when it is based on assumptions which are speculative
and are not supported by the record."). The district court was within
its discretion in excluding such evidence.

Second, Appellant argues that the court improperly excluded expert
testimony regarding the quality of treatment afforded Thomas.
Thomas' counsel asked Dr. Maxfield to provide his"assessment of
the treatment of Mr. Thomas." Defendants' counsel objected, and the
district court sustained the objection. We find no clear abuse of dis-
cretion in the district court's determination, especially since the court
allowed the testimony once Plaintiff's counsel provided the proper
foundation and correctly phrased the inquiry. Plaintiff's counsel later
asked Dr. Maxfield, "within a reasonable degree of medical certainty,
do you have an opinion with respect to the care that was rendered to
Mr. Thomas on [October 23, 1990] by Mr. Romney, the physician
assistant?" Dr. Maxfield replied in the affirmative and then stated his
opinion. We will not reverse a district court's evidentiary decision
under such circumstances.

Relatedly, Thomas' counsel later inquired of Dr. Maxfield if the
Medical Center's failure to schedule a follow-up appointment with
Thomas was a violation of the standard of care. Again, the district
court sustained Defendants' objection. Appellees argue that, although
Dr. Maxfield articulated a standard of care, he did not provide any
supporting evidence, such as relevant literature in the field, or testify
to customary practices in the medical profession. See Alevromagiros
v. Hechinger Co., 

, 421, 422 (4th Cir. 1993) (rejecting
expert testimony unsupported by any evidence). Rather, he simply
stated his own subjective opinion. See 

are unpre-

                     11
pared to agree that `it is so if an expert says it is so.'"). Under the cir-
cumstances, it was proper for the court to exclude such testimony.

Third, the court sustained an objection to a question that elicited
Dr. Maxfield's opinion regarding Thomas' medical condition at the
time of trial. The court so ruled because Appellant had not supple-
mented his pretrial disclosures regarding Dr. Maxfield's anticipated
trial testimony to include these matters. Under Federal Rule of Civil
Procedure 26(e)(1), "[a] party is under a duty to supplement ... its dis-
closures ... if the party learns that in some material respect the infor-
mation disclosed is incomplete or incorrect and if the additional or
corrective information has not otherwise been made known to the
other parties during the discovery process or in writing." This duty
extends to the testimony of an expert witness, Fed. R. Evid. 26(e)(1),
who prior to testimony is required to submit a report outlining the
opinions to be expressed and the data supporting the opinions, Fed.
R. Evid. 26(a)(2)(B).

The district court's decision barring expert testimony that had not
been previously disclosed in accordance with Rules 26(a)(2)(B) and
26(e)(1) was well within the court's discretion to manage its proceed-
ings to ensure that there be no unfair surprise at trial.8 See American
Casualty Co. v. Baker, 

, 886 n.3 (9th Cir. 1994) (noting
that "the district court was within its discretion by precluding expert
testimony as a sanction for the [defendant's] failure to seasonably
supplement its interrogatory responses pursuant to Federal Rule of
Civil Procedure 26(e)(1)"); Hancock v. Hobbs , 

, 468
(11th Cir. 1992) (finding no abuse of discretion where district court
excluded expert testimony because party advancing testimony did not
comply with Rule 26(e)(1)); 

(finding no
abuse of discretion where district court precluded expert testimony
because plaintiff "failed seasonably to supplement his answers as
_________________________________________________________________
8 We might add that Appellant presents no legitimate reason for his
failure to supplement his pretrial disclosures as required under Rule
26(e)(1), a fact that only buttresses our support for the district court's rul-
ing. See Thibeault v. Square D Co., 

, 247 (1st Cir. 1992)
(affirming district court's decision to exclude expert testimony where
plaintiff provided "no good cause" for its failure to supplement its disclo-
sures in a timely way).

                      12
required by Rule 26(e)"). Indeed, it would have been an abuse of dis-
cretion for the district court not to exclude the testimony, since such
a practice would allow the party proffering the testimony to notify the
other side of its substance for the first time while the witness was on
the stand -- clearly circumventing the purpose of Rule 26(e)(1) and
creating a situation possibly prejudicial to the adverse party. See

(noting that "Rule 26 increases the quality
of trials by ... minimizing surprise") (internal citations omitted); see
also Fed. R. Evid. 37(c)(1) ("A party that without substantial justifica-
tion fails to disclose information required by Rule 26(a) or 26(e)(1)
shall not, unless such failure is harmless, be permitted to use as evi-
dence at trial ... any witness or information not so disclosed.").

Even if Thomas had not violated Rule 26(e)(1), however, the court
still would have been within its discretion to exclude Dr. Maxfield's
testimony regarding Thomas' current medical condition. As the dis-
trict court recognized, Thomas' treating physician, Dr. Batipps, had
already testified about Thomas' current condition. Additional testi-
mony on the same subject would have amounted to"needless presen-
tation of cumulative evidence." Fed. R. Evid. 403; see also Talkington
v. Artria Reclamelucifers Fabrieken BV, 

, 266 (4th Cir.)
(concluding that any error in admitting evidence would be harmless
since evidence was cumulative), cert. dismissed , 

(1998). As such, Dr. Maxfield's testimony was well within the district
court's broad discretion to exclude evidence. We, therefore, will not
disturb the court's ruling.

Finally, Plaintiff asked Romney, the physician's assistant who
cared for Thomas the night of his injury, "Do you know why a doctor
or a health professional would order a CT scan or an MRI ... Why
don't you tell us?" Again, the district court sustained Defendants'
objection, determining that the question called for speculation. Rom-
ney was a fact witness, not an expert, and therefore was not qualified
to render an opinion on the motivation of doctors. The court acted
properly in excluding such testimony.9
_________________________________________________________________
9 Even if the court had committed some error with respect to the exclu-
sion of any testimony, which we do not believe to be the case, it would
be harmless since the testimony would not have remedied the lack of

                     13
III.

In summary, we conclude that the district court did not err in grant-
ing the Medical Center judgment as a matter of law and Dr. del Rosa-
rio summary judgment. Furthermore, we find no reversible error with
respect to the district court's exclusion of certain testimony. Accord-
ingly, the judgment below is affirmed.

AFFIRMED
_________________________________________________________________
causation in Appellant's evidence. Even with the excluded testimony,
Thomas is unable to demonstrate that some act or omission by the Medi-
cal Center proximately caused his injury, so his claims must fail. See

(determining that any error in admitting evi-
dence would be harmless since evidence did little to support plaintiff's
theory of case); see also Fed. R. Evid. 103(a) (noting that an "[e]rror may
not be predicated upon a ruling which admits or excludes evidence
unless a substantial right of the party is affected").

                    14