Christine Myers v. United States
673 F. App'x 749
| 9th Cir. | 2016Background
- Plaintiff Christine Myers sued the United States under the FTCA, alleging her child L. Myers was injured by thallium released when a Navy contractor dumped soil from a Camp Pendleton remediation project into a nearby landfill in 1999–2000.
- On the first appeal this Court held the United States breached mandatory duties (reviewing/ensuring adherence to the HASP) and remanded for phases two (actual and proximate causation) and three (damages). Myers v. United States, 652 F.3d 1021 (9th Cir. 2011) (Myers I).
- On remand the district judge presided over further bench trials; Myers sought the judge’s recusal based on his disparaging comments about the panel and the remand; no formal recusal motion was filed in district court.
- The district court found the previously established breaches did not cause L. Myers’s alleged injuries (finding unreliable thallium testing and alternative explanations for symptoms) and entered judgment for the United States on alternative grounds.
- On this appeal Myers raised four primary complaints: (1) judge should have recused under 28 U.S.C. §455(a); (2) district court violated the mandate rule by making findings inconsistent with Myers I; (3) the court improperly discounted plaintiff’s experts as tainted by counsel; and (4) the court should have shifted the burden to the United States on proximate causation under California’s Haft exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Recusal under 28 U.S.C. §455(a) | Judge’s repeated disparaging comments about the panel and remand showed bias; recusal required. | Any comments were judicial displeasure or rulings, not disqualifying; no formal motion below. | Abuse-of-discretion review; comments troubling but did not show deep-seated antagonism under Liteky; no reversible error. |
| Mandate rule compliance | District court repeatedly made findings contrary to this Court’s prior rulings on breach. | District court accepted breaches as decided and proceeded to causation; any differences are not contradictory to mandate. | No jurisdictional or mandate violation; court complied and confined re-litigation appropriately. |
| Discounting experts (‘poisoned the well’) | Experts formed opinions from treatment; counsel supplying publicly available materials does not discredit them. | Experts were influenced by counsel-provided materials; the court may weigh credibility. | Credibility determinations are for the factfinder; district court permissibly found counsel’s involvement could have colored testimony; no reversal. |
| Burden-shifting on proximate causation (Haft exception) | Substantial probability defendant’s negligence caused injury and negligence made proof of causation practically impossible; burden should shift to U.S. | Evidence of injury and causation was uncertain; extensive testing undermined claim that negligent monitoring made proof impossible. | District court reasonably found uncertainty on injury/causation and that defendant’s breaches did not render proof impossible; refused to apply Haft burden-shift. |
Key Cases Cited
- Liteky v. United States, 510 U.S. 540 (judicial rulings usually not basis for bias; deep-seated antagonism required)
- Myers v. United States, 652 F.3d 1021 (9th Cir. 2011) (remanding on breach; directing causation and damages phases)
- Noli v. Commissioner, 860 F.2d 1521 (9th Cir. 1988) (timeliness/forfeiture rules for recusal claims)
- Hawaii Stevedores, Inc. v. Ogawa, 608 F.3d 642 (9th Cir. 2010) (effect of lawyer-expert communications on credibility)
- City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036 (9th Cir. 2014) (credibility questions for factfinder)
- Stacy v. Colvin, 825 F.3d 563 (9th Cir. 2016) (scope of district court authority under the mandate rule)
- Haft v. Lone Palm Hotel, 3 Cal.3d 756 (Cal. 1971) (California’s narrow burden-shift exception when defendant’s negligence makes causation proof practically impossible)