In a prior appeal, this court reversed the district court's judgment allocating liability in this medical negligence action between three defendants—the United States and two Alaska healthcare providers. Liebsack v. United States, 731 F.3d 850 (9th Cir. 2013). In a concurrently filed memorandum disposition, this court affirmed the district court's damages award in part and vacated it in part.
In reaching this conclusion, we join the three other circuits that have squarely addressed Rule 601 ’s applicability to medical malpractice lawsuits applying state substantive law in federal court. See Legg v. Chopra , 286 F.3d 286, 289–92 (6th Cir. 2002) ; McDowell v. Brown , 392 F.3d 1283, 1294–95 (11th Cir. 2004) ; Liebsack v. United States , 731 F.3d 850, 855–57 (9th Cir. 2013) (all holding that Rule 601 incorporates state rules for expert qualification when determining the competency of expert witnesses offering testimony regarding medical malpractice claims that turn on substantive state law). In arguing to the contrary, Coleman relies heavily on the holding in Gerry , a case from the Western District of Texas, which held, without a discussion of Rule 601, that an expert witness’s qualification is "an evidentiary question, procedural in nature, and thus governed by the federal rules of evidence."
Nevertheless, the Ninth Circuit instructs that the two concepts are different: “A witness may be competent but unable to testify as to anything [admissible].” Liebsack v. United States, 731 F.3d 850, 857 (9th Cir. 2013) (citation omitted). Thus, rather than usurping admissibility standards under Rule 702, Rule 601 “leave[s] room for application of Rule 702 after state competency standards and Rule 601 are satisfied.”
The United States contends, and Mrs. Garcia does not challenge, that section 09.20.185 applies to an FTCA action based on medical negligence. See United States' Motion at 7-8; see generally Garcia's Response. The United States Court of Appeals for the Ninth Circuit has expressly held as much, see Liebsack v. United States, 731 F.3d 850, 857 (9th Cir. 2013), and its reasoning comports with McDowell v. Brown, 392 F.3d 1283, 1295-96 (11th Cir. 2004), in which the United States Court of Appeals for the Eleventh Circuit held that a state law governing expert-witness competency in the context of a medical-malpractice action requiring expert testimony is substantive. (1) a professional who is licensed in [Alaska] or in another state or country;
' However, 'where a state evidence rule is intimately bound up with the rights and obligations being asserted, [the Erie doctrine] mandates the application of a state rule[.]'" Liebsack v. United States, 731 F.3d 850, 855 (9th Cir. 2013) (citation omitted). See Erie R.R. v. Tompkins, 304 U.S. 64 (1938).
Because Arizona law governs an expert witness's competency regarding a claim or defense in a state law claim, any expert testimony that Tripodi offered had to be provided by witnesses competent under Arizona law. See Fed.R.Evid. 601; Liebsack v. United States, 731 F.3d 850, 856 (9th Cir. 2013) (applying state law on the competency of expert witnesses in FTCA actions); Higgenbottom v. Noreen, 586 F.2d 719, 722 (9th Cir. 1978) (
"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." Liebsack v. United States , 731 F.3d 850, 854 (9th Cir. 2013) (simplified).
28 U.S.C. § 1346(b)(1). "State substantive law applies" in FTCA actions. Liebsack v. United States , 731 F.3d 850, 856 (9th Cir. 2013). If an individual federal employee is sued, the United States shall, given certain conditions are satisfied, "be substituted as the party defendant."
28 U.S.C. § 1346(b)(1). "State substantive law applies" in FTCA actions. Liebsack v. United States , 731 F.3d 850, 856 (9th Cir. 2013). If an individual federal employee is sued, the United States shall, given certain conditions are satisfied, "be substituted as the party defendant."
28 U.S.C. § 1346(b)(1). "State substantive law applies" in FTCA actions. Liebsack v. United States, 731 F.3d 850, 856 (9th Cir. 2013). If an individual federal employee is sued, the United States shall, given certain conditions are satisfied, "be substituted as the party defendant."