NOT FOR PUBLICATION
Plaintiff Melvin Kornberg appeals from the district court's judgment in favor of Defendant, the United States of America, following a bench trial. Plaintiff underwent a left-ear stapedectomy in February 2009 in an attempt to improve his hearing. Plaintiff's left chorda tympani nerve was damaged during the procedure, leading to a partial loss of his sense of taste. Plaintiff claims that he was not given sufficient information about the risks of the stapedectomy to allow him to give informed consent to the operation. Because the stapedectomy was performed by doctors acting within the scope of their employment with the United States, Plaintiff sues the United States under the Federal Tort Claims Act. 28 U.S.C. §§ 1346(b)(1), 2674.
1. Plaintiff first argues that the district court erred by admitting evidence of the regular practices and routines of two of the doctors who treated Plaintiff and of the medical center at which Plaintiff received treatment. The district court reasoned that the habit-and-routine evidence tended to show that the doctors and the medical center had provided sufficient information to Plaintiff. The court noted that it was considering the evidence "under [Rule] 406" of the Federal Rules of Evidence, which allows the admission of "[e]vidence of a person's habit or an organization's routine practice . . . to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice." Plaintiff did not object to the admission of this evidence at trial, so we review for plain error.
2. Plaintiff next argues that the district court erred in concluding that Plaintiff gave informed consent to the surgery. "The law is clear in California that the existence of informed consent is an issue of fact. . . ."
3. Because we hold that the district court did not err in finding that Plaintiff gave informed consent, we need not address the issue of causation.