James Liebsack, as guardian for Madlyn Liebsack v. United States of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES LIEBSACK, as guardian for
Madlyn Liebsack and JON LIEBSACK, co-
personal representatives of the Estate of
Madlyn Liebsack,
Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
No. 15-35300
D.C. No. 3:07-cv-00071-RRB
MEMORANDUM*
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted August 3, 2016
Anchorage, Alaska
Before: FISHER, PAEZ, and HURWITZ, Circuit Judges.
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
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
AUG 17 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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(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. Liebsack v. United
States, 540 F. App’x 640 (9th Cir. 2013) (“Mem. Disp.”). On remand, the district
court held a new trial, recalculated damages, and reallocated fault between the three
defendants. The plaintiff, the Estate of Madlyn Liebsack, now appeals the judgment
on remand. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
1. The district court did not exceed the scope of the mandate by conducting a
new trial on remand. “According to the rule of mandate, although lower courts are
obliged to execute the terms of a mandate, they are free as to ‘anything not foreclosed
by the mandate.’” United States v. Kellington, 217 F.3d 1084, 1092 (9th Cir. 2000)
(quoting Herrington v. County of Sonoma, 12 F.3d 901, 904 (9th Cir. 1993)). Our
prior opinion and memorandum disposition plainly contemplated a new trial on
remand. See Liebsack, 731 F.3d at 858 (“[W]e must remand for a new trial.”); see
also Mem. Disp., 540 F. App’x at 641 n.1 (“[I]t is within the district court’s
discretion to . . . retry the entire action . . . .”).
2. The district court did not abuse its discretion by permitting the government
to add expert witnesses on remand. Had the district court refused to allow experts
qualified under Alaska Statutes § 09.20.185, the United States would have been
subjected to liability far in excess of its actual share of fault. A district court does
not violate the discretionary law of the case doctrine by departing from a prior ruling

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if “a manifest injustice would otherwise result.” United States v. Alexander, 106
F.3d 874, 876 (9th Cir. 1997).
3. The district court did not err by recalculating future damages following the
second trial. This court’s memorandum disposition vacated the original award of
future damages and instructed the court to reevaluate them in light of Ms. Liebsack’s
intervening death. See 540 F. App’x at 642-43.
AFFIRMED.

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