FILED
NOT FOR PUBLICATION AUG 30 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT H. WOLCOFF; HEATHER No. 12-35891
WOLCOFF,
D.C. No. 3:08-cv-00032-SLG
Plaintiffs - Appellants,
v. MEMORANDUM*
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Argued and Submitted August 15, 2013
Anchorage, Alaska
Before: KOZINSKI, Chief Judge, BERZON and IKUTA, Circuit Judges.
1. We’ve held that non-delegable duty is a theory of vicarious liability
under Alaska law. M.J. v. United States, No. 11-35625, 2013 WL 3285288, at *1
(9th Cir. July 1, 2013) (relying on Ward v. Lutheran Hosps. & Homes Soc’y of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
page 2
Am., Inc., 963 P.2d 1031, 1034–35 n.5 (Alaska 1998)). Because the United States
hasn’t waived immunity for torts by a contractor or its employees under the
Federal Torts Claim Act, the United States can’t be “vicariously liable for the
negligence . . . of an independent contractor.” Yanez v. United States,
63 F.3d
870, 872 (9th Cir. 1995). Accordingly, the Wolcoffs can’t hold the United States
vicariously liable for the alleged negligence of Dr. Yost. Therefore, it’s irrelevant
whether the rule enunciated in Fletcher v. S. Peninsula Hosp.,
71 P.3d 833 (Alaska
2003), extends to operating rooms, and the district court did not abuse its discretion
in declining to certify this question to the Alaska Supreme Court.
2. The district court didn’t abuse its discretion by denying the Wolcoffs
leave to amend their complaint to add claims against Dr. Yost and the United
States for failure to obtain informed consent. Amendment would have been futile,
because neither Alaska’s informed consent statute, Alaska Stat. § 09.55.556, nor
Alaska case law required disclosure of information concerning Dr. Yost.
3. The district court didn’t abuse its discretion by denying the Wolcoffs’
motion to bring negligent supervision and negligent assistance claims against the
United States at trial, given that these theories were not presented until the
Wolcoffs’ trial brief. For the same reason, the district court didn’t abuse its
page 3
discretion when it excluded the Wolcoffs’ expert evidence supporting these claims.
See Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1062 (9th Cir. 2005);
Yeti by Molly, Ltd. v. Deckers Outdoor Corp.,
259 F.3d 1101, 1106 (9th Cir.
2001).
AFFIRMED.
