Edward Liebsack v. USA

Filing

FILED OPINION (A. WALLACE TASHIMA, RICHARD C. TALLMAN and N. RANDY SMITH) REVERSED AND REMANDED. Judge: AWT Authoring, Liebsack shall recover her costs on appeal, to the extent costs can be taxed against the government.. FILED AND ENTERED JUDGMENT. [8791940] [11-35158, 11-35479, 11-35535]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JAMES LIEBSACK, as guardian for
Madlyn Liebsack; JON LIEBSACK,
co-personal representatives of the
Estate of Madlyn Liebsack,
Plaintiffs-Appellants,

No. 11-35158
D.C. No.
3:07-cv-0071RRB

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.

No. 11-35479
D.C. No.
3:07-cv-0071RRB

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LIEBSACK V. UNITED STATES

JON LIEBSACK, co-personal
representative of the Estate of
Madlyn Liebsack,
Plaintiff-Appellant,
JAMES LIEBSACK, as guardian for
Madlyn Liebsack,
Plaintiff-Appellee,

No. 11-35535
D.C. No.
3:07-cv-0071RRB

OPINION

v.
UNITED STATES OF AMERICA,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief District Judge, Presiding
Argued and Submitted
May 21, 2013—Anchorage, Alaska
Filed September 23, 2013
Before: A. Wallace Tashima, Richard C. Tallman,
and N. Randy Smith, Circuit Judges.
Opinion by Judge Tashima

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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.

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

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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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.

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, nonfederal 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

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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

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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 symptoms of jerky
movements; thus, Jones was no longer concerned about
potential lithium toxicity. She never sought to confirm the
results of the lithium test she had ordered. On November 10,
2002, Liebsack suffered a heart attack, wich led to this
lawsuit.
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

1

While the appeal was pending, we granted a motion to substitute the
plaintiff-appellant because of Liebsack’s death. Jon Liebsack and James
Liebsack, as co-personal representatives of the Estate of Madlyn Liebsack,
were substituted for Edward Liebsack, as guardian for Madlyn Liebsack.

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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 28 U.S.C. § 1291.
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

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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 Alaska
Statute § 09.20.185.2 That provision mandates that “[i]n an
action based on professional negligence, a person may not
testify as an expert witness on the issue of the appropriate
standard of care unless the witness is:” (1) licensed by a state
or another country; (2) “trained and experienced in the same
discipline or school of practice as the defendant or in an area
directly related to a matter at issue”; and (3) “certified by a
board recognized by the state as having acknowledged
expertise and training directly related to the particular field or
matter at issue.” The government contends that § 09.20.185
does not apply to this action and that, even if it did, there was
still sufficient evidence to sustain the district court’s ruling.3

2

Although it was disputed at trial, on appeal, the parties do not
challenge the district court’s findings that: (1) the heart attack was caused
by elevated lithium levels; (2) Liebsack’s lithium level was elevated at the
time of her blood test on October 14, 2002; and (3) treatment for lithium
toxicity during the relevant time period would have prevented the heart
attack.
3
The government does not argue that Liebsack waived the § 09.20.185
argument, although it appears that Liebsack never expressly brought the
statute to the district court’s attention. Nevertheless, she did object to the
testimony of Dr. Simono on the grounds that she was “not qualified to
offer the standard of care as to a psychiatrist,” and to the testimony of Dr.

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We agree with Liebsack that § 09.20.185 applies to this
action and that none of the testimony regarding Nurse Jones
conformed with that provision.
“[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 (1992); 28 U.S.C.
§ 2674. But “[i]t is clear that federal law governs all
procedural aspects of a claim under the [FTCA].” Schwarder
v. United States, 974 F.2d 1118, 1126 (9th Cir. 1992). In the
analogous setting of diversity suits, the Federal Rules of
Evidence “ordinarily govern.” Wray v. Gregory, 61 F.3d
1414, 1417 (9th Cir. 1995). However, “where a state
evidence rule is intimately bound up with the rights and
obligations being asserted, Erie R.R. Co. v. Tompkins,
304 U.S. 64, 78 (1938), mandates the application of a state
rule in a diversity suit.” Wray, 61 F.3d at 1417 (internal
quotation marks, alterations, and citations omitted).
Moreover, Federal Rule of Evidence 601 instructs that, in
civil cases, “state law governs the witness’s competency
regarding a claim or defense for which state law supplies the
rule of decision.”
With these parameters in mind, we must determine if
§ 09.20.185 applies to an FTCA action based on medical
negligence. We have found no Ninth Circuit case directly on
point. Thus, we begin with Legg v. Chopra, in which the
Sixth Circuit addressed a nearly identical question in the
context of a medical malpractice diversity action. 286 F.3d
286 (6th Cir. 2002). The state statute at issue in Legg
required a testifying medical expert to be licensed in
Kahn on a similar basis. These objections were sufficient to preserve the
claim of error.

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Tennessee or a contiguous state in the relevant specialty, and
to have practiced in one of those locations for at least one
year preceding the alleged injury. Id. at 291. The court first
noted that “some state evidentiary rules have substantive
aspects, thereby defying the substance-procedure distinction
and creating a potential Erie conflict.” Id. at 290. In
particular, it observed that “[s]tate witness competency rules
are often intimately intertwined with a state substantive rule.”
Id. The court then held that Rule 601 “resolve[s] this
potential conflict” and “incorporates the Erie mandate” by
requiring application of state witness competency rules in
federal court. Id. Thus, the court held that the Tennessee
competency statute applied in the diversity action before it.
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 (1993) – governs the
admissibility of expert evidence. See Legg, 286 F.3d at 291.
Specifically, the court ruled that the Tennessee statute “is
directed at establishing the substantive issue in the case, and
[Rule 702] is a gatekeeping measure designed to ensure
‘fairness in administration’ of the case.” Id. at 292 (quoting
Fed. R. Evid. 102). Thus, Legg instructed district courts first
to apply any state competency requirements pursuant to Rule
601, and then to determine if the testimony is “otherwise
admissible” under Rule 702 and Daubert.
At least one other circuit and a district court have
followed the reasoning of Legg.4 And, although we have not

4

See, e.g., McDowell v. Brown, 392 F.3d 1283, 1294–96 (11th Cir.
2004); Mann v. United States, No. 11-8018, 2012 WL 273690, at *10–11

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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.5 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.

(D. Ariz. Jan. 31, 2012); Wright v. United States, No. 06-01788, 2008 WL
820557, at *3–5 (D. Ariz. Mar. 25, 2008).
5

The Jerden court ultimately ruled that the defendant’s objection had
been untimely, which arguably renders the discussion of Rule 601 dicta.
Nevertheless, its analysis is persuasive on the proper scope of Rule 601.

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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 § 09.20.185 in this matter because it is a rule of
witness competency.6
As Legg recognizes, state competency rules such as
§ 09.20.185 do not displace Rule 702 and Daubert. 286 F.3d
at 291. Rule 702 concerns the admissibility of scientific
evidence, not a witness’ competency to testify in the first
place. “[A] key to establishing the scope of Rule 601 is to
distinguish between competency and admissibility. A witness
may be competent but unable to testify as to anything
[admissible].” 27 Charles Alan Wright, et al., FEDERAL
PRACTICE AND PROCEDURE § 6003 (2d ed. 2013). Thus, for
example, a witness might satisfy the specialization and
certification requirements under § 09.20.185, but her
testimony would be inadmissible if, under Rule 702, it is not
“based on sufficient facts or data.” As one court has
recognized, “possessing requisite credentials alone is not
enough to render expert testimony admissible.” Fuesting v.
Zimmer, Inc., 421 F.3d 528, 535 (7th Cir. 2005), vacated in
part on other grounds, 448 F.3d 936 (7th Cir. 2006).

6
The government argues that Rule 601 only applies to a narrow set of
state competency rules such as those governing a witness’s ability to
comprehend the proceedings. But this interpretation of Rule 601 is
foreclosed by our precedent, discussed above, which has applied Rule 601
more broadly to include state rules of expert witness qualification.

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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 § 09.20.185 is a state rule of
“witness competency” that applies to this action under
Federal Rule of Evidence 601, as well as part of Alaska’s
substantive law, making it applicable to FTCA actions under
§ 2674.
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

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opinion was necessary and that § 09.20.185 never came into
play. The government recognizes that, “[i]n medical
malpractice actions . . . the jury ordinarily may find a breach
of a professional duty only on the basis of expert testimony.”
Clary Ins. Agency v. Doyle, 620 P.2d 194, 200 (Alaska 1980).
But the government invokes “[t]he primary limitation to this
rule[:] that expert testimony is not needed in non-technical
situations where negligence is evident to lay people.”
Kendall v. State, Div. of Corr., 692 P.2d 953, 955 (Alaska
1984). We disagree that this exception applies. The alleged
negligence here involved the psychiatric treatment of a
schizoaffective patient, the interpretation of potential
symptoms of lithium toxicity, and the duties associated with
lithium therapy. This was not a situation where negligence
would be “evident to lay people.” See Hymes v. Deramus,
119 P.3d 963, 968 n.23 (Alaska 2005) (noting that claims
regarding “treatment decisions, prescriptions, or other
medical issues that are arguably technical” would require
expert evidence, whereas “the failure to provide medication
and adequate access to licensed physicians” would not). The
government was therefore required to provide expert
testimony in conformance with § 09.20.185.
The government next contends that its evidence did
comply with § 09.20.185. The only colorable argument in
this regard concerns the testimony of Dr. Simono,7 a board7

Aside from Dr. Simono, the government points to the testimony of
Nurse Jones, Dr. Lucy Curtiss, and Dr. Robert Kahn. But none of their
testimony was sufficient. Nurse Jones did not testify about the applicable
standard of care, nor (unsurprisingly) did she testify that she had breached
any standard of care. As for Dr. Curtiss, a psychiatrist who had previously
supervised nurses, the government concedes that she “was not a retained
expert witness and did not testify as a retained expert witness.” Thus, her
opinion could not have sustained the negligence finding against Nurse

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certified family practice physician who testified that Nurse
Jones should have followed up on the lab tests. The
government argues that she was qualified under § 09.20.185
because the “matter at issue” was simply a medical provider’s
responsibility to follow up on tests he or she has ordered.
This argument – essentially a rehash of the claim that no
expert testimony was needed – frames the issue too narrowly.
The crux of the negligence claim was that Nurse Jones
breached the standard of care for psychiatric treatment of a
patient with lithium toxicity symptoms. Indeed, the district
court’s ruling was not limited simply to the failure to “followup,” but instead discussed several shortcomings in Nurse
Jones’s conduct, including among other things, the failure to
contact Dr. Grant and the failure to order lithium tests more
frequently. Thus, Dr. Simono was not qualified under Alaska
law to testify to the “matter at issue.”8 In sum, none of the
government’s evidence regarding Nurse Jones’ negligence
complied with § 09.20.185.

Jones. Finally, even assuming Dr. Kahn’s testimony supported the district
court’s findings, he is a family practitioner who was not qualified under
Alaska law to testify about the matter at issue. Indeed, Dr. Kahn was
careful to emphasize that he “did not know the standard of care for a
psychiatric nurse practitioner” and that he “did not give opinions on Cindy
Jones’ practice or behavior.”
8

It is telling, in this regard, that the government moved to supplement
its expert witness list more than two months after the deadline to include
a psychiatric expert that could testify “about the standard of care for
providers treating mentally ill patients with lithium.” The court denied the
motion as untimely. Left with no psychiatric expert, the government
sought to coax psychiatric opinions from its family medicine experts, who
had been called primarily to testify to the conduct of Dr. Grant.

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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
Alaska Stat. § 09.17.080(c). In other words, the error could
not have been harmless and we must remand for a new trial.
See Mukhtar v. Cal. State Univ., Hayward, 299 F.3d 1053,
1068 (9th Cir.), amended on denial of reh’g en banc,
319 F.3d 1073 (9th Cir. 2002).9 The judgment of the district
court is reversed and the case is remanded for a new trial.
Liebsack shall recover her costs on appeal, to the extent costs
can be taxed against the government.
REVERSED and REMANDED.

9

The viability of Mukhtar’s mandatory new-trial rule is currently subject
to en banc consideration. See Barabin v. AstenJohnson, Inc., 700 F.3d
428 (9th Cir. 2012), reh’g en banc granted, 710 F.3d 1074 (9th Cir. 2013).
The 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 § 09.20.185.

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