James LIEBSACK, as guardian for Madlyn Liebsack; Jon Liebsack, co-personal representatives of the Estate of Madlyn Liebsack, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
Nos. 11-35158, 11-35479, 11-35535
United States Court of Appeals, Ninth Circuit
September 23, 2013
731 F.3d 850
TASHIMA, Circuit Judge
Argued and Submitted May 21, 2013.
Finally, Memorial claims that the 300-PCI minimum, which derives in part from American College of Cardiology Foundation (“ACCF“) recommendations, should be invalidated because the Department does not uniformly mandate that hospitals adhere to those guidelines in various practice cases. This is an “apples to oranges” argument that does nothing to invalidate the Department‘s conclusion that a 300-PCI minimum has real safety benefits above a threshold of 200 PCIs.
Memorial offers no evidence that the benefits of the 300-PCI minimum are illusory or manufactured. In view of the substantial record supporting the safety requirement, we are loath to insert ourselves into the medical debate. As the Supreme Court has emphasized, “if safety justifications are not illusory, the Court will not second-guess legislative judgment about their importance in comparison with related burdens on interstate commerce.” Kassel, 450 U.S. at 670, 101 S.Ct. 1309 (internal quotation marks omitted); see also Kleenwell Biohazard Waste and Gen. Ecology Consultants, Inc. v. Nelson, 48 F.3d 391, 399-400 (9th Cir.1995) (upholding nondiscriminatory regulation of solid waste disposal based on “ample evidence” that regulations protected the public).
CONCLUSION
Memorial did not establish that the challenged regulations burdened interstate commerce or that the putative safety benefits were illusory. We therefore affirm the district court‘s dismissal of all of Memorial‘s remaining claims.
AFFIRMED.
Stuart F. Delery, Acting Assistant Attorney General, Thomas M. Bondy, Daniel J. Lenerz (argued), Attorneys, Appellate Staff, Civil Division. United States Department of Justice, Washington, D.C., Karen Loeffler, United States Attorney, Anchorage, AK, for Defendant-Appellee/Cross-Appellant.
Before: A. WALLACE TASHIMA, RICHARD C. TALLMAN, and N. RANDY SMITH, Circuit Judges.
OPINION
TASHIMA, Circuit Judge:
Madlyn Liebsack suffered from a schizoaffective disorder that was treated, in part, with lithium. In 2002, she had a heart attack due to an elevated level of lithium in her bloodstream and was left in a permanent vegetative state. Her guardian, Edward Liebsack, sued the United States under the Federal Tort Claims Act (“FTCA“), asserting that federal health-
Liebsack appeals both the liability and damages rulings, and the government cross-appeals on damages. Liebsack‘s central argument on liability is that none of the government‘s evidence about Nurse Jones conformed with an Alaska statute requiring specialized expert testimony in medical malpractice actions. Because we conclude that this evidence should not have been admitted, we reverse the judgment and remand for a new trial. We address the cross-appeals on damages in a separate memorandum disposition filed concurrently with this opinion and, on those issues, affirm the district court.
I.
A.
In the period leading up to the heart attack, Liebsack was living at the Lakeview assisted living facility. Nurse Jones, her treating psychiatric provider, worked at the Anchorage Community Mental Health Center (“ACMHC“), a non-federal facility. On October 11, 2002, Lakeview staff took Liebsack to ACMHC after noticing leg-buckling and jerky movements. Nurse Jones saw Liebsack and considered a variety of potential causes for the symptoms, one of which was an elevated level of lithium. Nurse Jones ordered several blood tests, including one for lithium. She also referred Liebsack to her treating physician, Madeleine Grant, “[t]o see if there was any other metabolic issues or neurological issues going on at the time.” The referral to Dr. Grant was not for the purpose of assessing lithium toxicity because that was Nurse Jones’ “area of expertise.” Dr. Grant worked at the Anchorage Neighborhood Health Center, a federally-funded healthcare provider (“the government health center“).
Liebsack had her blood drawn at the government health center on October 14, 2002. For disputed reasons, the government lab did not run the lithium test. Liebsack then saw Dr. Grant on October 16, 2002. Dr. Grant was unsure why Liebsack was scheduled for a visit and Liebsack was unable to tell her. Dr. Grant surmised that the visit may have been a follow-up to a recent visit for respiratory illness and eye complaints. Dr. Grant confirmed that these issues had been resolved, and also reviewed the results from the recent lab work (which did not include a lithium test). Dr. Grant had not received a written referral or phone call from Nurse Jones, though Liebsack did tell Dr. Grant that Jones “wanted to talk to” her. Dr. Grant did not think she needed to call Nurse Jones because she did not consider Liebsack to be a reliable source of information in light of her mental illness. Dr. Grant and other witnesses also testified that efforts to learn Liebsack‘s medical history (beyond the records available at the government clinic) were generally futile.
Liebsack then saw Nurse Jones for a follow-up visit on October 18, 2002. Jones confirmed that Liebsack had had her blood drawn and had seen Dr. Grant. Jones also noted that Liebsack was no longer showing
B.
Liebsack‘s brother and guardian, Edward Liebsack, brought suit in state court against several defendants, including ACMHC, the Lakeview assisted living facility, and the United States.1 The United States then removed the action to federal court, and all other parties eventually settled. At the ensuing bench trial, Liebsack argued that her injuries were due to the negligence of (1) the government lab, for failing to run the lithium test; and (2) Dr. Grant, for failing to determine the reason for Liebsack‘s October 16 visit. The government argued that all of the fault lay with (1) Nurse Jones, for failing to follow through on her lithium toxicity concerns; and (2) Lakeview, for failing to relay their concerns about Liebsack‘s health to Dr. Grant.
The district court found that Nurse Jones, Lakeview, and the government lab were all negligent, but that Dr. Grant was not. It apportioned fault as follows: Nurse Jones—80%; Lakeview—5%; government lab—15%; Dr. Grant—0%. With respect to Nurse Jones, the court held that she had “failed to follow up on the laboratory request, failed to seek further testing, and failed to contact Dr. Grant regarding her concerns.” The court also noted that “it had been over eight months since Madlyn‘s last lithium test, far longer than appropriated [sic] for one in Madlyn‘s condition. Given Madlyn‘s history and symptomology, testing should have been more frequent.” The court then ordered the government to pay non-economic damages and 15% of Liebsack‘s past and future medical expenses. Liebsack filed this timely appeal, and the government cross-appealed. We have jurisdiction under
II.
A district court‘s finding of negligence is reviewed for clear error. Vollendorff v. United States, 951 F.2d 215, 217 (9th Cir.1991). “The existence and extent of the standard of conduct are questions of law, reviewable de novo, but issues of breach and proximate cause are questions of fact, reviewable for clear error.” Id.
III.
A.
Liebsack contends that the district court‘s finding regarding Nurse Jones’ negligence was erroneous because the government did not present an expert qualified under
“[T]he extent of the United States’ liability under the FTCA is generally determined by reference to state law.” Molzof v. United States, 502 U.S. 301, 305, 112 S.Ct. 711, 116 L.Ed.2d 731 (1992);
With these parameters in mind, we must determine if
Legg also held that application of Rule 601 (and the Tennessee statute) did not displace Rule 702, which—together with the analysis in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)—governs the admissibility of expert evidence. See Legg, 286 F.3d at 291. Specifically, the court ruled that the Tennessee statute
At least one other circuit and a district court have followed the reasoning of Legg.4 And, although we have not directly addressed the issue, our precedent is in accord. In Jerden v. Amstutz, 430 F.3d 1231 (9th Cir.2005), we addressed a medical malpractice diversity action arising under Oregon law. The district court had struck one of the plaintiff‘s experts for failing to satisfy Oregon‘s requirement that a malpractice expert must show knowledge of what is “proper conduct by practitioners in the community.” Id. at 1235. On appeal, we recognized that “[p]ursuant to Federal Rule of Evidence 601, the district court was required to follow the Oregon locality rule when presented with the testimony of out-of-town medical experts who testify as to the appropriate standard of care” for that community or a similar community under circumstances similar to those which confronted the defendant. Id. Similarly, in Trevino v. United States, we held that the district court was required, under Rule 601, to follow Washington‘s practice of granting trial courts broad discretion to determine the competence of expert witnesses. 804 F.2d 1512, 1516 (9th Cir.1986); see also Higgenbottom v. Noreen, 586 F.2d 719, 722 (9th Cir.1978) (applying similar Oregon state precedent through Rule 601).
The reasoning in Legg, Jerden, and Trevino applies squarely to the case at bench. State substantive law applies in FTCA actions, and the Alaska statute here is intertwined with the state‘s professional negligence law because it limits what kind of professional can testify to the standard of care. That limitation, in turn, affects the standard of care against which the defendant‘s conduct will be tested—an inherently substantive inquiry. See Jackson v. United States, 881 F.2d 707, 712 (9th Cir.1989) (“[The FTCA] specifically makes state law controlling to the extent needed to fix the government‘s substantive liability.” (citations omitted)). Moreover, while the distinction between substance and procedure is often elusive, Rule 601 plainly mandates the application of
As Legg recognizes, state competency rules such as
The government relies primarily on two Seventh Circuit cases, but the first is inapposite and the second actually supports Liebsack‘s view. In Ueland v. United States, the court did not address any state rules of witness competence or eligibility to testify, nor did it address the application of Rule 601. 291 F.3d 993 (7th Cir.2002). Instead, Ueland recognized—as do we—that state substantive law applies to FTCA actions, but that courts must still apply Rule 702 to determine the admissibility of expert testimony. Id. at 997-98. And in Wallace v. McGlothan, 606 F.3d 410 (7th Cir.2010), the court held (as in Legg) that state rules on expert testimony were substantive and thus applied in a diversity action. Id. at 419. The state rules in Wallace required expert evidence to prove causation for certain kinds of medical negligence cases; thus, the court held that those rules “go to the proof required for the causation element of medical negligence.” Id. Although Wallace also noted that the Federal Rules must govern the “standards for admitting expert evidence,” id., this principle is consistent with the cases discussed above, which leave room for application of Rule 702 after state competency standards and Rule 601 are satisfied.
We therefore hold that
B.
The government presents two additional, alternative arguments, but neither is availing. First, it contends that Nurse Jones’ negligence was so obvious that no expert opinion was necessary and that
C.
Although the erroneous admission of expert testimony is subject to harmless error analysis, Liebsack has easily shown “that the allegedly erroneous evidentiary ruling more probably than not was the cause of the result reached.” Jauregui v. City of Glendale, 852 F.2d 1128, 1133 (9th Cir.1988). Aside from the evidence discussed above, the government points to no other evidence that could have supported the district court‘s ruling as to Nurse Jones. Moreover, because the finding against Nurse Jones cannot stand, neither can the 15% liability finding against the government because the relative liability of each actor is intertwined (both proportionally and substantively). See
REVERSED and REMANDED.
proposed alternative, at least as discussed in Judge Graber‘s panel concurrence, see id. at 434 (Graber, J., concurring), would require remand for a limited evidentiary hearing to see if the evidentiary error can be resolved without a new trial. There is no need to await the results of Barabin, however, because the error in this case could not be cured at an evidentiary hearing. The record shows that none of the witnesses could have qualified under