Kathy Holtshouser v. United States , 595 F. App'x 687 ( 2014 )


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  •                                                                               FILED
    NOT FOR PUBLICATION                                DEC 16 2014
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    KATHY HOLTSHOUSER, individually                  No. 13-35457
    and as personal representative of decedent
    Harold Holtshouser,                              D.C. No. 1:11-cv-00114-RFC-
    CSO
    Plaintiff - Appellant,
    v.                                             MEMORANDUM*
    UNITED STATES OF AMERICA,
    Defendant - Appellee.
    Appeal from the United States District Court
    for the District of Montana
    Richard F. Cebull, Senior District Judge, Presiding
    Submitted December 11, 2014**
    Seattle, Washington
    Before: McKEOWN, TALLMAN, and OWENS, Circuit Judges.
    Kathy Holtshouser, individually and as personal representative of decedent
    Harold Holtshouser, appeals the rejection of her medical malpractice and
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    negligence claims filed under the Federal Tort Claims Act (“FTCA”), 
    28 U.S.C. § 2674
    , against the United States Department of Veterans Affairs (“VA”). On
    partial summary judgment, which we review de novo, the district court rejected her
    claim against a VA nurse practitioner. Navajo v. U.S. Forest Serv., 
    535 F.3d 1058
    ,
    1067 (9th Cir. 2008) (en banc). After a bench trial, the district court rejected her
    remaining claim against the VA pharmacy. We review findings of fact in a bench
    trial for clear error and conclusions of law de novo. 
    Id.
     Montana law applies to
    this FTCA action. 
    28 U.S.C. §§ 1346
    (b)(1), 2674. We have jurisdiction under 
    28 U.S.C. § 1291
    , and we affirm.
    In her first claim, Kathy Holtshouser alleged that a VA nurse practitioner
    negligently prescribed a drug to her husband Harold. The district court rejected
    this claim because Kathy Holtshouser did not identify an expert who could
    establish the applicable standard of care. The district court concluded, and we
    agree, that her two experts could not establish the applicable standard of care
    because they did not satisfy the requirements of section 26-2-601 of the Montana
    Code. Regardless of whether the locality rule applies, neither expert possessed
    sufficient experience with geriatrics or primary care to satisfy this section’s
    requirement that any expert testifying in a medical malpractice action “routinely
    treat[] or ha[ve] routinely treated within the previous 5 years the diagnosis or
    2
    condition or provide[] the type of treatment that is the subject matter of the
    malpractice claim.” 
    Mont. Code Ann. § 26-2-601
    (1)(a). Accordingly, the district
    court correctly rejected this claim.
    In her second claim, Kathy Holtshouser alleged that the VA pharmacy
    negligently dispensed the drug prescribed by the nurse practitioner. The district
    court rejected this claim because her expert did not hold the VA pharmacy to the
    proper standard of care at trial. We again agree with the district court. Putting
    aside the issue of the scope of the duty the VA pharmacy owed to Harold
    Holtshouser, the expert who testified at trial for Kathy Holtshouser relied
    exclusively on internal VA guidelines and policies to establish the VA’s standard
    of care. This is contrary to state law, as the Montana Supreme Court has
    consistently held that the standard of care in a professional negligence action
    cannot be established exclusively with reference to such internal guidelines and
    policies. See, e.g., Dalton v. Kalispell Reg’l Hosp., 
    846 P.2d 960
    , 962 (Mont.
    1993). Thus, the district court correctly rejected this claim as well.
    Finally, Kathy Holtshouser contends that the VA argued inconsistent
    positions before the district court, so the doctrine of judicial estoppel should apply.
    This argument fails for two reasons. First, it was waived because it was not
    presented to the district court. See United States v. Robertson, 
    52 F.3d 789
    , 791
    3
    (9th Cir. 1994). Second, it is meritless. The VA argued that the two experts could
    not establish the standard of care for the nurse practitioner, not that the nurse
    practitioner owed no duty to Harold Holtshouser. Because the VA did not argue
    inconsistent positions, judicial estoppel is inapplicable. See Cigna Prop. & Cas.
    Ins. Co. v. Polaris Pictures Corp., 
    159 F.3d 412
    , 419 (9th Cir. 1998).
    AFFIRMED.
    4
    

Document Info

Docket Number: 13-35457

Citation Numbers: 595 F. App'x 687

Judges: McKeown, Tallman, Owens

Filed Date: 12/16/2014

Precedential Status: Non-Precedential

Modified Date: 11/6/2024