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Liebsack v. United States

United States Court of Appeals, Ninth Circuit

September 23, 2013

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. 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. Jon Liebsack, co-personal representative of the Estate of Madlyn Liebsack, Plaintiff-Appellant, James Liebsack, as guardian for Madlyn Liebsack, Plaintiff-Appellee,
v.
United States of America, Defendant-Appellant.

Argued and Submitted May 21, 2013 Anchorage, Alaska

Appeals from the United States District Court for the District of Alaska Ralph R. Beistline, Chief District Judge, Presiding D.C. Nos. 3:07-cv-0071-RRB, 3:07-cv-0071-RRB, 3:07-cv-0071-RRB.

COUNSEL

Christian N. Bataille (argued), Flanigan & Bataille, Anchorage, Alaska, for Plaintiffs-Appellants/Cross-Appellee.

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, Alaska, for Defendant-Appellee/Cross-Appellant.

Before: A. Wallace Tashima, Richard C. Tallman, and N. Randy Smith, Circuit Judges.

OPINION

SUMMARY[*]

Federal Tort Claims Act / Alaskan Law

The panel reversed the district court's judgment in favor of the federal government in an action, brought pursuant to the Federal Tort Claims Act, alleging that federal healthcare providers negligently failed to monitor lithium levels on a patient.

Plaintiffs alleged that none of the government's evidence about the treating nurse practitioner conformed with an Alaska statute requiring specialized expert testimony in medical malpractice actions. The panel held that Alaska Statute § 09.20.185 was a state rule of "witness competency" that applied to this action under Federal Rules of Evidence 601, as well as part of Alaska's substantive law, thereby making it applicable to Federal Tort Claims Act actions under 28 U.S.C. § 2674. The panel concluded that none of the government's evidence regarding the nurse practitioner's negligence complied with § 09.20.185. The panel concluded that the error could not have been harmless, and remanded for a new trial.

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 healthcare providers negligently failed to monitor Madlyn's lithium levels. The government's primary defense at the ensuing bench trial was that the fault lay with another, non-federal healthcare provider. Specifically, the government argued that the fault lay with Cindy Jones, an advanced nurse practitioner who was responsible for Liebsack's psychiatric care. The district court found that Nurse Jones was 80% at fault for Liebsack's injuries, that the United States was 15% at fault, and that Liebsack's assisted-living home was 5% at fault. The court then awarded Liebsack 15% of her past and future medical expenses.

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 ...


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