Jon Liebsack v. United States
731 F.3d 850
| 9th Cir. | 2013Background
- Madlyn Liebsack, treated with lithium for schizoaffective disorder, suffered a lithium-induced heart attack in 2002 and was left in a permanent vegetative state; her guardian (later estate) sued under the FTCA alleging federal providers negligently failed to monitor lithium levels.
- Relevant providers: Cindy Jones (non-federal psychiatric nurse practitioner at ACMHC), Dr. Madeleine Grant (physician at a federally funded clinic), and the federal lab (which did not run a lithium test ordered on Oct. 14, 2002).
- District court found multiple actors negligent, apportioning fault: Jones 80%, government (lab) 15%, assisted-living facility 5%; ordered the United States to pay 15% of past and future medical expenses.
- On appeal, Liebsack argued the government’s expert testimony about Nurse Jones failed to comply with Alaska Stat. § 09.20.185 (state expert-qualification/competency rule); the government argued the statute did not apply or that no specialized expert was needed.
- The Ninth Circuit held § 09.20.185 applies in FTCA actions (via Rule 601 and Erie principles), concluded the government’s experts were not qualified under that statute, rejected the “obvious negligence” exception, found the error prejudicial, reversed, and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Alaska Stat. § 09.20.185 (expert competency/certification) applies to FTCA medical-negligence claims | § 09.20.185 applies; state competency rules govern expert qualification in FTCA suits | Federal rules (Rule 702/Daubert) should govern; state rule need not apply | § 09.20.185 applies under Fed. R. Evid. 601 and Erie; state competency rule governs expert qualification, with Rule 702/Daubert as an additional gatekeeping step |
| Whether the government’s testimony satisfied § 09.20.185 | Government experts did not meet the statute’s specialty/certification requirements for psychiatric standard-of-care testimony | Some government witnesses (family-practice physicians, supervising psychiatrist) provided adequate testimony; or no specialized expert needed | None of the government’s witnesses satisfied § 09.20.185 for the “matter at issue” (psychiatric care/lithium management) |
| Whether expert testimony was unnecessary because negligence was obvious to laypeople | Expert testimony was required because issues (psychiatric treatment, lithium toxicity, monitoring frequency) are technical | The negligence (failure to follow up on ordered tests) was nontechnical and obvious to lay jurors | The exception for lay-obvious negligence did not apply; this was a technical medical issue requiring qualified expert testimony |
| Whether the erroneous admission of unqualified expert testimony was harmless error | The error likely affected the verdict; without qualified psychiatric expert the finding against Nurse Jones cannot stand | Other evidence supported the findings; any error was harmless | Error was not harmless; the finding as to Nurse Jones (and thus the government’s apportioned fault) is reversed and the case remanded for a new trial |
Key Cases Cited
- Molzof v. United States, 502 U.S. 301 (FTCA liability measured by state law)
- Legg v. Chopra, 286 F.3d 286 (6th Cir.) (state expert-qualification rules apply via Rule 601; apply Rule 702/Daubert after competency)
- Jerden v. Amstutz, 430 F.3d 1231 (9th Cir.) (application of state expert-qualification/locality rules under Rule 601)
- Trevino v. United States, 804 F.2d 1512 (9th Cir.) (district courts must follow state practices on expert competence under Rule 601)
- Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (federal gatekeeping standard for admissibility of expert scientific testimony)
- Mukhtar v. California State Univ., Hayward, 299 F.3d 1053 (9th Cir.) (erroneous admission of expert testimony requiring reversal unless harmless)
- Schwarder v. United States, 974 F.2d 1118 (9th Cir.) (procedural aspects of FTCA governed by federal law)
- Wray v. Gregory, 61 F.3d 1414 (9th Cir.) (state evidentiary rules that are intertwined with substantive rights may apply in federal court)