Eric Mueller v. City of Boise ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIC MUELLER; CORISSA D. 
MUELLER, husband and wife,
individually and on behalf of
Taige L. Mueller, a minor, and on
behalf of themselves and those
similarly situated,
Plaintiffs-Appellants, No. 11-35351
v. D.C. No.
APRIL K. AUKER; BARBARA 1:04-cv-00399-BLW
HARMON; JANET A. FLETCHER;
KIMBERLY A. OSADCHUK; LINDA  ORDER
AMENDING
RODENBAUGH; KARL B. KURTZ; KEN OPINION AND
DIEBERT, AMENDED
Defendants, OPINION
and
CITY OF BOISE; DALE ROGERS; TED
SNYDER; TIM GREEN; RICHARD K.
MACDONALD; SAINT LUKE’S
REGIONAL MEDICAL CENTER, LTD.,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted
July 24, 2012—Boise, Idaho
Filed September 10, 2012
Amended October 25, 2012
12907
12908 MUELLER v. CITY OF BOISE
Before: J. Clifford Wallace, Stephen S. Trott, and
N. Randy Smith, Circuit Judges.
Opinion by Judge Trott
12910 MUELLER v. CITY OF BOISE
COUNSEL
Michael E. Rosman, Center for Individual Rights, Washing-
ton, D.C., for the plaintiffs-appellants.
Kirtlan G. Naylor, Naylor & Hales, P.C., Boise, Idaho; Keely
Elizabeth Duke and Richard E. Hall, Duke Scanlan Hall
PLLC, Boise, Idaho; and W. Christopher Pooser, Stoel Rives
LLP, Boise, Idaho, for the defendants-appellees.
MUELLER v. CITY OF BOISE 12911
James K. Dickinson, Ada County Prosecutor’s Office, Boise,
Idaho, for amicus curiae Ada County Prosecutor’s Office.
ORDER
The Opinion filed September 10, 2012, is amended as fol-
lows: on slip opinion page 10863, line 6, replace the first full
paragraph (Part IV B, Battery) beginning “We conclude that
the district court . . . .” with the following text:
The district court dismissed the Muellers’ battery
claim against Dr. Macdonald pursuant to Federal
Rule of Civil Procedure 50(a). The record conclu-
sively establishes that he did not treat Taige until he
was given consent to do so by April Auker on behalf
of the Idaho Department of Welfare. Mueller v.
Auker, 576 F.3d at 984-86. At the time, the State had
taken legal custody of the Muellers’ daughter. Id.
Neal v. Neal, 125 Idaho 617, 622; 873 P.2d 871,
876 (1994), states that “[c]ivil battery consists of an
intentional, unpermitted contact upon the person of
another which is either unlawful, harmful or offen-
sive.” Id. The Supreme Court of Idaho also held that
“lack of consent is . . . an essential element of bat-
tery,” and that “[c]onsent obtained by fraud or mis-
representation vitiates the consent and can render the
offending party liable for a battery.” Id.Auker’s consent to treatment was valid unless
obtained by fraud or misrepresentation. Although we
ordinarily view the evidence on this issue in the light
most favorable to the non-moving party, Torres v.
City of Los Angeles, 548 F.3d 1197, 1205-06 (9th
Cir. 2008), the issue of possible fraud or misrepre-
sentation on the part of Dr. Macdonald leading to
12912 MUELLER v. CITY OF BOISE
April Auker’s consent has now been resolved by dis-
positive events. As previously discussed in Part IV.A
of this opinion, the issue of whether or not Dr. Mac-
donald knowingly made a false report to Detective
Rogers of imminent danger to Taige in order to
deprive the Muellers of their parental rights was liti-
gated and did go to the jury. In a special verdict, the
jury rejected the Muellers’ theory. This finding of
fact is fully supported by the record and conclusively
determines between these parties in favor of Dr.
Macdonald the factual issue of the validity of the
State’s consent to treat Taige upon which he relied.
The jury’s verdict is entitled to preclusive effect pur-
suant to the doctrine of collateral estoppel. There-
fore, this issue is moot because it has become merely
academic and thus no longer justiciable.
The panel has voted to deny the petition for panel rehear-
ing. Judge Smith has voted to deny the petition for rehearing
en banc and Judges Wallace and Trott so recommend.
The full court has been advised of the suggestion for
rehearing en banc and no judge of the court has requested a
vote on it. Fed. R. App. P. 35(b).
With this amendment, the petition for rehearing, and the
petition for rehearing en banc are otherwise DENIED. No fur-
ther petitions for rehearing will be accepted.
OPINION
TROTT, Circuit Judge:
Because the district court and the parties to this protracted
lawsuit—as well as the judges of this panel hearing the issues
for the second time—are well aware of its history, the trial
MUELLER v. CITY OF BOISE 12913
record, and the proceedings in district court, we refer to them
only as necessary to explain our decision. We have previously
published an opinion on a related issue in Mueller v. Auker,
576 F.3d 979 (9th Cir. 2009). That opinion exhaustively
unfurls the facts giving rise to this case.
We have jurisdiction over this timely appeal pursuant to 28
U.S.C. §§ 1291 and 1294(1), and we affirm. We address each
new issue in turn.
I
A
Qualified Immunity
[1] We begin our discussion of whether Detective Dale
Rogers and Officers Ted Snyder and Tim Green are entitled
to qualified immunity for their actions involving the interrup-
tion of Corissa Mueller’s parental rights with a review of that
important principle as reiterated by the Supreme Court in
recent cases.
“The doctrine of qualified immunity protects gov-
ernment officials ‘from liability for civil damages
insofar as their conduct does not violate clearly
established statutory or constitutional rights of which
a reasonable person would have known.’ ” Pearson
v. Callahan, 555 U.S. 223, 231 (2009) (quoting Har-
low v. Fitzgerald, 457 U.S. 800, 818 (1982)). Quali-
fied immunity “gives government officials breathing
room to make reasonable but mistaken judgments,”
and “protects ‘all but the plainly incompetent or
those who knowingly violate the law.’ ” Ashcroft v.
al-Kidd, 563 U.S. ___, ___ (2011) (slip op., at 12)
(quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)). “[W]hether an official protected by quali-
fied immunity may be held personally liable for an
12914 MUELLER v. CITY OF BOISE
allegedly unlawful official action generally turns on
the ‘objective legal reasonableness’ of the action,
assessed in light of the legal rules that were ‘clearly
established’ at the time it was taken.” Anderson v.
Creighton, 483 U.S. 635, 639 (1987) (citation omit-
ted).
Messerschmidt v. Millender, 565 U.S. ___, 132 S. Ct. 1235,
1244-45 (2012). The inquiry called for by this doctrine “must
be undertaken in the light of the specific context of the case,
not as a broad general proposition.” Brosseau v. Haugen, 543
U.S. 194, 198 (2004) (quoting Saucier v. Katz, 533 U.S. 194,
201 (2001) (internal quotation marks omitted)). Accordingly,
“the result [of this inquiry] depends very much on the facts of
each case.” Id. at 201. Finally, “[t]he contours of the right
must be sufficiently clear [in a particularized sense] that a rea-
sonable official would understand that what he is doing vio-
lates that right.” Id. at 199 (quoting Anderson v. Creighton,
483 U.S. 635, 640 (1987) (internal quotation marks omitted)).
In order to apply this doctrine correctly, which makes
allowance for some constitutional mistakes, it is useful to
revisit its purpose:
Nor is it always fair, or sound policy, to demand
official compliance with statute and regulation on
pain of money damages. Such officials as police
officers or prison wardens, to say nothing of higher
level executives . . . who enjoy only qualified immu-
nity, routinely make close decisions in the exercise
of the broad authority that necessarily is delegated to
them. These officials are subject to a plethora of
rules, “often so voluminous, ambiguous, and contra-
dictory, and in such flux that officials can only com-
ply with or enforce them selectively.” See P. Schuck,
Suing Government 66 (1983). In these circum-
stances, officials should not err always on the side of
caution. “[O]fficials with a broad range of duties and
MUELLER v. CITY OF BOISE 12915
authority must often act swiftly and firmly at the risk
that action deferred will be futile or constitute virtual
abdication of office.” Scheuer v. Rhodes, [416 U.S.
232, 246 (1974))].
Davis v. Scherer, 468 U.S. 183, 196 (1984) (second alteration
in original). We review the district court’s grant of summary
judgment de novo. Burke v. Cnty. of Alameda, 586 F.3d 725,
730 (9th Cir. 2009). “Viewing the evidence in the light most
favorable to the nonmoving party, we must determine whether
there are any genuine issues of material fact and whether the
district court correctly applied the relevant substantive law.”
Id. (internal quotation marks omitted).
With this framework in mind, we must decide whether, at
the time of Detective Rogers’s and Officers Snyder’s and
Green’s actions, it was “clearly established” that they were
violating (1) the Mueller’s Fourteenth Amendment’s liberty
interest in the care, custody, and control of their infant daugh-
ter Taige, and (2) Corissa Mueller’s Fourth Amendment right
against unreasonable search and seizure. In other words,
viewing the facts in the light most favorable to the Muellers,
did the officers have an objectively reasonable basis for fear-
ing that Taige was in imminent danger and for causing her
parents to lose custody without a judicial hearing, and that “a
reasonable officer could have come to such a conclusion.”
Ryburn v. Huff, 565 U.S. ___, 132 S. Ct. 987, 992 (2012) (per
curiam).
B
The Constitutional Rights at Issue
There is no doubt that the Muellers have a liberty interest
in the “care, custody, and control of their child[ ].” Troxel v.
Granville, 530 U.S. 57, 65 (2000); Lehr v. Robertson, 463
U.S. 248, 256-57 (1983). It is also the case, however, that like
all constitutional rights, these rights are not absolute. Under
12916 MUELLER v. CITY OF BOISE
certain circumstances, these rights must bow to other counter-
vailing interests and rights, such as the basic independent life
and liberty rights of the child and of the State acting as parens
patriae; and on occasion, this accommodation may occur
without a pre-deprivation hearing. As the Supreme Court has
said, a state “has an urgent interest in the welfare of the child
. . . .” Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 27 (1981);
see also J.B. v. Washington Cnty., 127 F.3d 919, 925, 927
(10th Cir. 1997) (parents’ liberty interest in the custody and
care of their children is balanced against the state’s “tradi-
tional and transcendent” interest in “acting as parens patriae”
to protect children); Thomason v. SCAN Volunteer Servs.,
Inc., 85 F.3d 1365, 1371 (8th Cir. 1996) (“[T]he liberty inter-
est in familial relations is limited by the compelling govern-
ment interest in the protection of minor children, particularly
in circumstances where the protection is considered necessary
as against the parents themselves.” (quoting Myers v. Morris,
810 F.2d 1437, 1462 (8th Cir. 1987) (internal quotation marks
omitted)).
When do the constitutional rights of parents step aside? “In
an emergency situation . . . when the children are subject to
immediate or apparent danger or harm.” Caldwell v. LeFaver,
928 F.2d 331, 333 (9th Cir. 1991). As we explained in Ram
v. Rubin, parents have a “constitutionally protected right to
the care and custody of [their] children” and cannot be “sum-
marily deprived of that custody without notice and a hearing,”
except where “the children [are] in imminent danger.” 118
F.3d 1306, 1310 (9th Cir. 1997) (citing Caldwell, 928 F.2d at
333); Lossman v. Pekarske, 707 F.2d 288, 291 (7th Cir. 1983)
(“When a child’s safety is threatened, that is justification
enough for action first and hearing afterward.”).
[2] With this context in mind, the issue before us, as cor-
rectly articulated by the district court, is whether on August
12, 2002, the law was clearly established that Detective Rog-
ers (1) had to secure a judicial hearing for the Muellers before
seizing Taige for medical treatment, (2) should not have
MUELLER v. CITY OF BOISE 12917
declared that Taige was in imminent danger and caused her
custody to be transferred to the Department of Health and
Welfare, and (3) should not have temporarily confined
Corissa after seizing her daughter.
C
Analysis
[3] In declaring the infant Taige to be in “imminent dan-
ger” of serious bodily injury pursuant to the Idaho Child Pro-
tective Act, Detective Rogers relied on the opinions of
qualified medical professionals: the board-certified emer-
gency room doctor treating the infant, Dr. Richard Macdon-
ald; and a board-certified pediatrician, Dr. Noreen Womack,
with whom the treating physician had conferred. Dr. Womack
recommended contacting a social worker should Corissa con-
tinue to refuse treatment for her daughter. In taking her
daughter to the emergency room, Corissa’s goal was the same
as her husband’s, her personal physician’s, Detective Rog-
ers’s, Dr. Macdonald’s, and Dr. Womack’s: to rule out, inter
alia, meningitis, a serious medical condition capable of caus-
ing an infant’s death or permanent brain injury. As Eric Muel-
ler explained in his deposition, going to the emergency room
“would be the safe thing to do.” In his deposition, Eric attri-
buted a similar state of mind to Detective Rogers: concern
about Taige’s health. The medical standard of care Corissa’s
naturopathic physician told Corissa she would encounter in
the emergency room was the administration of antibiotics and
a lumbar spinal tap, a standard also designed to protect the
patient. On the facts of this case, we conclude that Detective
Rogers’s declaration of “imminent danger” was objectively
reasonable.
The district court summarized its analysis of this issue as
follows:
This lack of clearly established law is most appar-
ent in Detective Rogers’ imminent danger analysis.
12918 MUELLER v. CITY OF BOISE
He was confronted with a physician insisting (1) that
the treatments be done, (2) that they be done quickly,
(3) that they constituted the standard of care, (4) that
the risk of foregoing treatments outweighed the risks
of treatment, (5) that the treatments would com-
pletely eliminate any danger to Taige, and (6) that if
Corissa left with Taige untreated, Taige’s condition
could deteriorate so quickly that she could suffer
serious injury or die before Corissa could return to
the hospital.
In this situation, no clearly established law existed
to guide Detective Rogers. The phrase “imminent
danger” has not been given any detailed definition,
either by Wallis [v. Spencer, 202 F.3d 1126 (9th Cir.
2000)] or any other case, that could have guided
Detective Rogers.
Reviewing this analysis de novo, see Burke, 586 F.3d at 730,
we conclude that it is amply supported by the record.
[4] In arriving at this conclusion, the district court stated
that “[t]he Court’s research, and the parties’ briefing do not
reveal any cases which have laid out the constitutional guide-
lines for resolving parental [non-religious] objections to medi-
cal treatment . . . .” Five years later, the Muellers still have
not provided us with any cases specific enough to the emer-
gency room facts and circumstances of this case to advance
their cause. We have not uncovered a decision identifying a
Fourteenth Amendment violation “on facts even roughly com-
parable to those present in this case.” Ryburn, 565 U.S. at
___, 132 S. Ct. at 990. Nowhere can we find any clearly
established law which would have required a judicial hearing
before Detective Rogers or the Department of Health and
Welfare took the actions that they did when facing these dan-
gers.
When examined at the level of specificity mandated by
Brosseau, Wallis, as we discussed at length in our previous
MUELLER v. CITY OF BOISE 12919
opinion, is “manifestly distinguishable.” Mueller, 576 F.3d at
995-96. To repeat: “This inquiry ‘must be undertaken in [the]
light of the specific context of the case, not as a broad general
proposition.’ ” Id. at 994 (quoting Saucier v. Katz, 533 U.S.
at 201). In effect, the Muellers ask us to repeat the analytical
mistake we made in Brosseau, where we approached this
issue based upon general tests and abstract constitutional
propositions instead of focusing on the precise factual sce-
nario confronted by the officers. 543 U.S. at 199-200. In fact,
Wallis, the Muellers’ principal case, stands for the unremark-
able proposition that parents and children can be separated
“without due process of law . . . in an emergency.” Wallis,
202 F.3d at 1136.
Idaho law permits a police officer to place a child in shelter
care without a court order when necessary to prevent serious
physical injury. I.C. § 16-1612 (since renumbered as I.C.
§ 16-1608). The Muellers’ late assertion in their reply brief
that this law is “obviously unconstitutional” is of no help to
them on this issue, because at the time the disputed decisions
were made, no clearly established law existed to that effect.
Moreover, the existence of a state statute authorizing an offi-
cial’s disputed conduct weighs in that official’s favor, so long
as the statute itself does not offend the Constitution, and I.C.
§ 16-1612 does not. Caldwell, 928 F.2d at 334.
Detective Rogers was in no position to second guess Dr.
Macdonald. Even were we to assume with hindsight that the
doctor’s assessment was wrong, to attribute such a profes-
sional error in judgment to Detective Rogers would be mani-
festly inappropriate. The Muellers admit it was objectively
reasonable for Detective Rogers to accept the doctor’s opinion
over Corissa’s. The Supreme Court has instructed that “rea-
sonableness ‘must be judged from the perspective of a reason-
able officer on the scene, rather than with the 20/20 vision of
hindsight’ and that ‘[t]he calculus of reasonableness must
embody allowance for the fact that police officers are often
forced to make split-second judgments—in circumstances that
12920 MUELLER v. CITY OF BOISE
are tense, uncertain, and rapidly evolving.’ ” Ryburn, 565
U.S. at ___, 132 S. Ct. at 992 (alteration in original) (quoting
Graham v. Connor, 490 U.S. 386, 396-97 (1989)). When
Taige’s temperature spiked at 1:40 a.m., time became of the
essence, and it was at that point that Detective Rogers made
his decision. Mueller, 576 F.3d at 985. The district court cor-
rectly observed that the term “imminent danger” has not been
given any detailed definition . . . that could have guided
Detective Rogers. Contrary to the Muellers’ arguments, Wal-
lis does not require that to justify a declaration of imminent
danger, the imminent danger must be likely to occur. See 202
F.3d at 1138. Even if our later case Rogers v. County of San
Joaquin, 487 F.3d 1288 (9th Cir. 2007) imposes such a
requirement, Rogers could not have made any potential
unlawfulness “apparent in light of preexisting law” in 2002.
See Trevino v. Gates, 99 F.3d 911, 917 (9th Cir. 1996).
[5] The Muellers also argue that although “Rogers was
entitled to consider [Dr.] MacDonald’s medical opinion,” he
was not entitled to rely on the doctor’s “legal opinion.” How-
ever, Detective Rogers made his own decision as to imminent
danger. That decision had legal consequences, but it was
rationally based on the objective facts of the situation.
[6] In summary, Detective Rogers, along with Officers
Snyder and Green (who made no decisions at all), are entitled
to qualified immunity from this lawsuit. Ironically, it has
taken ten years of litigation to arrive at this conclusion.
D
The Fourth Amendment
[7] The Fourth Amendment usually requires an officer to
have a warrant issued upon probable cause before seizing
someone, but “neither probable cause nor a warrant is
required when ‘special needs, beyond the normal need for law
enforcement, make the warrant and probable-cause require-
MUELLER v. CITY OF BOISE 12921
ment impracticable.’ ” Yin v. California, 95 F.3d 864, 869
(9th Cir. 1996) (quoting Veronica Sch. Dist. v. Acton, 515
U.S. 646, 653 (1995)). In these “special needs” cases, we
“dispense[ ] with the probable cause and warrant requirements
and simply appl[y] a balancing test to determine if a search
or seizure is reasonable and thus constitutional.” Yin, 95 F.3d
at 869.
[8] Under the circumstances of this case, the officers’ sep-
aration of Corissa Mueller from her daughter while medical
procedures were being performed in an emergency room was
demonstrably reasonable. As the district court correctly ruled,
this separation was necessary to maintain order in the hospital
and to ensure that Taige’s treatment was not interrupted, a
distinct possibility caused by Mrs. Mueller’s opposition to the
procedures and her admittedly agitated state of mind. Eric
Mueller describes his wife at this moment as “hysterically
crying.” This separation occurred not in a public place, but in
a high-pressure location involving seriously ill and injured
patients and delicate medical procedures. Persons who go to
an emergency room are entitled by federal law to privacy,
Health Insurance Portability and Accountability Act of 1996
(HIPAA), Pub. L. No. 104-191, 110 Stat. 1936 (1996), and
not to be bothered or endangered by others while they are
there. We find unpersuasive the Muellers’ argument that
Corissa should not have been taken temporarily to the privacy
of a small room while doctors performed their duties. No
clearly established law prohibited such action. See Trevino, 99
F.3d at 916-17. The district court’s ruling was correct. Thus,
we conclude that the officers are entitled to qualified immu-
nity with regard to Corissa’s Fourth Amendment claim.
II
Dr. Rosen’s Testimony
[9] The Muellers take issue with the district court’s deci-
sion pursuant to Federal Rule of Evidence 702 to admit the
12922 MUELLER v. CITY OF BOISE
testimony of Dr. Peter Rosen on behalf of Dr. Macdonald.
Federal Rule of Evidence 702 requires that expert testimony
be “the product of reliable principles and methods.” Fed. R.
Civ. P. 702(c). The Muellers argue that Dr. Rosen’s opinion
was based solely on “clinical instinct,” which they argue is
not a reliable basis for expert testimony under Rule 702. We
review the district court’s admission of expert testimony for
abuse of discretion. United States v. Cordoba, 104 F.3d 225,
229 (9th Cir. 1997).
The Muellers concede that Dr. Rosen is well-credentialed
in this field of medicine, and that he has had a distinguished
career and extensive experience. About this, there can be no
dispute. Dr. Rosen is a board-certified emergency room physi-
cian with over forty years of practice. In addition to being a
prolific author, he was then a professor of emergency medi-
cine at Harvard Medical School and the University of Arizona
School of Medicine.
The essence of Dr. Rosen’s opinion was as follows:
What was, was the presentation of the child who
looked ill, acted ill, and had a history of not behav-
ing normally. She was lethargic. She was not feeding
properly, and she did not have a normal initial physi-
cal examination. It was that constellation of presen-
tation, history, and findings as to what convinced me
that she was a patient who needed a mandatory fever
workup and that the risk of a serious bacterial infec-
tion that Dr. Macdonald cited was very accurate.
Dr. Rosen also believed on the basis of the medical records
that Taige probably did arrive at the hospital with a serious
infection and that Dr. Macdonald’s prompt administration of
fluids and antibiotics “prevented her from developing a seri-
ous sepsis syndrome [including meningitis] from which she
could not have recovered, causing her to die or leaving her
permanently damaged.” He credited Dr. Macdonald with act-
MUELLER v. CITY OF BOISE 12923
ing appropriately under the circumstances, and offered his
opinion that Dr. Macdonald’s risk assessment regarding Taige
was valid. Here, he explained the role and value of an experi-
enced doctor’s “clinical instinct,” upon which an emergency
medicine “must often rely.”
In medicine, when we see a patient and when
we’re trying to figure out what’s wrong with them,
we sort of make a list in our head of what could be
wrong, what could be causing the problem, what do
I have to evaluate for and what do I have to treat.
Emergency physicians take a little bit different
approach than other physicians, because other physi-
cians have time to sort of sit back and think about
things and look things up and compare things. We
have to make decisions very quickly, and we have to
make lots of decisions all at once, all at the same
time with very little information.
So we make a differential diagnosis or a list of
possibilities in our head. And we put—at the top of
that list we put the worst thing it could be. What is
the thing that could kill the person? What is the thing
that could damage the person? What do I have to
treat now and not miss? And then sort of work down
the list to more likely things, but less concerning
things.
[10] Contrary to the presentation of the Appellants’ coun-
sel at oral argument, clinical instinct is a well-recognized and
accepted aspect of current medical practice. The precept
encompasses what experience adds to scientific knowledge
and training. Clinical instinct as a diagnostic and treatment
tool is not new.
The district court made its decision to admit Dr. Rosen’s
testimony and opinions after careful, painstaking, and
12924 MUELLER v. CITY OF BOISE
thoughtful consideration. This decision was legally sound and
an appropriate exercise of discretion. As the court correctly
summarized the situation, Dr. Macdonald’s diagnosis that
Taige had a serious bacterial infection was “a judgment call
based on clinical instinct and made under time pressure.”
The district court reconsidered the admissibility of Dr.
Rosen’s testimony in the Muellers’ post-trial motion for a
new trial. As part of that thorough process, Dr. Rosen was
recalled as a witness by video, and his trial testimony was
again examined in the light of the Muellers’ specific objection
to it. As a result of this process, the court was again satisfied
that Dr. Rosen’s expert witness testimony was directly rele-
vant to the central disputed issue of whether Dr. Macdonald
“falsely exaggerated the risk to Taige Mueller in order to
deprive the Muellers of their parental rights.”
In the end, the court relied on our opinion in Primiano v.
Cook, 598 F.3d 558 (9th Cir. 2010), in deciding that Dr.
Rosen’s testimony was relevant and admissible under Rule
702. In that case, we said:
“Despite the importance of evidence based medicine,
much of medical decision-making relies on judgment
—a process that is difficult to quantify or even to
assess qualitatively. Especially when a relevant
experience base is unavailable, physicians must use
their knowledge and experience as a basis for weigh-
ing known factors along with the inevitable
uncertainties” to “mak[e] a sound judgment.”
Id. at 565 (alteration in original) (quoting Harrison’s Princi-
ples of Internal Medicine 3 (Dennis L. Kasperet et al. eds.,
16th ed. 2005)).
[11] In summary, the district court did not err or abuse its
discretion in admitting the proffered testimony of Dr. Peter
Rosen pursuant to Federal Rule of Evidence 702 or in denying
MUELLER v. CITY OF BOISE 12925
the Muellers’ motion on this issue for a new trial. Dr. Rosen’s
testimony plainly assisted the jury in understanding the evi-
dence and in determining the validity of Dr. Macdonald’s risk
assessment. Also, Dr. Rosen’s opinion testimony was relevant
with respect not only to the substantive issues before the jury,
but also as direct rebuttal to the Muellers’ expert, Dr. Eugene
Shapiro. Once admissible, the weight to be given to Dr.
Rosen’s testimony was for the jury to determine. Primiano,
598 F.3d at 565.
III
The Dismissal of the Case Against St. Luke’s
The district court did not err in dismissing the Muellers’
§ 1983 claims against St. Luke’s without leave to amend,
because it was clear that amendment would be futile. “Dis-
missal without leave to amend is improper unless it is clear,
upon de novo review, that the complaint could not be saved
by any amendment.” Manzarek v. St. Paul Fire & Marine Ins.
Co., 519 F.3d 1025, 1031 (9th Cir. 2008) (internal quotation
marks omitted).
[12] On de novo review, we conclude that the district court
correctly granted St. Luke’s Federal Rule of Civil Procedure
12(b)(6) motion to dismiss without leave to amend. See id. St.
Luke’s did not become a state actor simply because it com-
plied with state law requiring its personnel to report possible
child neglect to Child Protective Services. State law does not
amount to an actionable hospital policy. See Sutton v. Provi-
dence St. Joseph Med. Ctr., 192 F.3d 826, 838 (9th Cir.
1999); see also Brown v. Newberger, 291 F.3d 89, 93 (1st Cir.
2002) (concluding that a doctor did not become a state actor
by filing a report of suspected child abuse as required by state
law). Moreover, St. Luke’s medical standard of care under
these circumstances isn’t a policy either. Neither did social
worker Bob Condon’s testimony establish any actionable pol-
icy on the part of St. Luke’s. In fact, the record conclusively
12926 MUELLER v. CITY OF BOISE
demonstrates that no appropriate amendment to the complaint
could overcome these obvious problems. See Manzarek, 519
F.3d at 1034. The hospital’s conduct in question was not
fairly attributable to the State.
IV
A
Section 1983 Conspiracy
[13] All viable claims against Dr. Macdonald went for
determination to the jury, including the Muellers’ claim that
he was liable to them pursuant to 42 U.S.C. § 1983. Contrary
to the Muellers’ assertions, the substantive claims against Dr.
Macdonald were not dismissed by way of summary judgment.
As the district court correctly observed, the Muellers’ case
depended in large part upon proving as a major premise that
“Dr. Macdonald falsely exaggerated the risk to Taige Mueller
in an effort to use Detective Rogers’ [sic] statutory authority
to deprive the Muellers of their parental rights.” The jury
rejected this theory in its answer to a question put to it in a
special verdict. To the question, “Did Dr. Macdonald make a
false report of child neglect regarding Taige Mueller knowing
that said report was false?”, the jury answered “No.” Instruc-
tion 15, about which the Muellers now complain, was not
plain error. See Hunter v. Cnty. of Sacramento, 652 F.3d
1225, 1230 (9th Cir. 2011).
B
Battery
The district court dismissed the Muellers’ battery claim
against Dr. Macdonald pursuant to Federal Rule of Civil Pro-
cedure 50(a). The record conclusively establishes that he did
not treat Taige until he was given consent to do so by April
Auker on behalf of the Idaho Department of Welfare. Mueller
MUELLER v. CITY OF BOISE 12927
v. Auker, 576 F.3d at 984-86. At the time, the State had taken
legal custody of the Muellers’ daughter. Id.Neal v. Neal, 125 Idaho 617, 622; 873 P.2d 871, 876
(1994), states that “[c]ivil battery consists of an intentional,
unpermitted contact upon the person of another which is
either unlawful, harmful or offensive.” Id. The Supreme Court
of Idaho also held that “lack of consent is . . . an essential ele-
ment of battery,” and that “[c]onsent obtained by fraud or
misrepresentation vitiates the consent and can render the
offending party liable for a battery.” Id.[14] Auker’s consent to treatment was valid unless
obtained by fraud or misrepresentation. Although we ordinar-
ily view the evidence on this issue in the light most favorable
to the non-moving party, Torres v. City of Los Angeles, 548
F.3d 1197, 1205-06 (9th Cir. 2008), the issue of possible
fraud or misrepresentation on the part of Dr. Macdonald lead-
ing to April Auker’s consent has now been resolved by dispo-
sitive events. As previously discussed in Part IV.A of this
opinion, the issue of whether or not Dr. Macdonald know-
ingly made a false report to Detective Rogers of imminent
danger to Taige in order to deprive the Muellers of their
parental rights was litigated and did go to the jury. In a special
verdict, the jury rejected the Muellers’ theory. This finding of
fact is fully supported by the record and conclusively deter-
mines between these parties in favor of Dr. Macdonald the
factual issue of the validity of the State’s consent to treat
Taige upon which he relied. The jury’s verdict is entitled to
preclusive effect pursuant to the doctrine of collateral estop-
pel. Therefore, this issue is moot because it has become
merely academic and thus no longer justiciable.
V
The Jury Instructions
[15] We review de novo jury instructions challenged as a
misstatement of the law, and the formulation of jury instruc-
12928 MUELLER v. CITY OF BOISE
tions for abuse of discretion. Gilbrook v. City of Westminster,
177 F.3d 839, 860 (9th Cir. 1999). “Jury instructions must be
formulated so that they fairly and adequately cover the issues
presented, correctly state the law, and are not misleading.”
Brewer v. City of Napa, 210 F.3d 1093, 1097 (9th Cir. 2000).
The jury instructions and the district court’s rulings in relation
to them, examined in the light of the issues and viewed as a
whole, were complete, clear, correct, and adequate to allow
the Muellers to pursue all their theories of liability.
First, the Muellers argue that the court was required to
direct the jury that there is a presumption that the parents
acted reasonably. They are mistaken because the Muellers’
reasonableness is irrelevant to the question put to the jury:
whether Taige was in imminent danger. See Wallis, 202 F.3d
at 1138.
Next, the Muellers contend that the jury instructions erro-
neously put the burden on them to show an absence of immi-
nent danger. However, in a claim brought under 42 U.S.C.
§ 1983 “the plaintiff carries the ultimate burden of establish-
ing each element of his or her claim.” Pavao v. Pagay, 307
F.3d 915, 919 (9th Cir. 2002). Because the Muellers’ claims
arise under section 1983 the jury instructions properly placed
the burden on the Muellers.
Next, the Muellers argue that the jury instructions errone-
ously failed to mention the officers’ duty to conduct a reason-
able investigation. If there was any error here, it was
harmless. The jury instructions mentioned most of the issues
the Muellers contend should have been investigated. They
argue the officers should have investigated the risks of treat-
ment, how long it takes to obtain a warrant, and whether Mr.
Mueller would have consented. All but the last of these were
already included in the instructions as factors for the jury to
consider. As to the remaining factor, our prior opinion in this
case ruled that the officers were not liable for failing to con-
tact Mr. Mueller. Mueller, 576 F.3d at 995-97.
MUELLER v. CITY OF BOISE 12929
Next the Muellers argue that the jury instructions incor-
rectly listed as an optional factor—rather than a required
element—whether there was time to obtain a warrant. While
our cases have discussed whether there is time to hold a hear-
ing and obtain a warrant, see, e.g., Rogers, 487 F.3d at 1294,
this factor has never supplanted the central question, which is
whether the child is in “imminent danger.”
VI
Motion for New Trial
We review the denial of a motion for new trial for abuse of
discretion. DSPT Int’l, Inc. v. Nahum, 624 F.3d 1213, 1218
(9th Cir. 2010). “A district court may grant a new trial only
if the jury verdict is contrary to the clear weight of the evi-
dence.” Id. “The district court’s denial of a motion for a new
trial is reversible only if the record contains no evidence in
support of the verdict or if the district court made a mistake
of law.” Id. (internal quotation marks omitted).
[16] The Muellers’ claim that the district court erroneously
denied their motion for a new trial is unsupported by the
record. The Muellers argue that the jury implicitly found that
Dr. Macdonald’s conduct could not be attributed to St. Luke’s
and argue that this implicit finding is against the weight of the
evidence, which, they argue, establishes that he was an appar-
ent agent of St. Luke’s. The jury’s failure to find that Dr.
Macdonald was an “apparent agent” of St. Luke’s was not
against the weight of evidence. See id. The evidence was such
as to permit a reasonable factfinder to decide as this jury did.
Although the Muellers argue that the district court abused its
discretion “because the law requires some notice that the spe-
cific doctor in question . . . was an independent contractor,”
Idaho has not expressly adopted such a rule. See Jones v.
HealthSouth Treasure Valley Hosp., 147 Idaho 109, 116, 206
P.3d 473, 480 (2009). And, as we have already discussed, the
court did not err in allowing the jury to hear Dr. Rosen’s testi-
12930 MUELLER v. CITY OF BOISE
mony. Thus, we conclude that the district court did not abuse
its discretion in denying the Muellers’ motion for a new trial.
See DSPT Int’l, Inc., 624 F.3d at 1218.
VII
Failure to Train
We review de novo the district court’s judgment as a matter
of law in favor of the City of Boise with regard to the Muel-
lers’ claim of failure properly to train its officers. Torres, 548
F.3d at 1205.
[17] The court properly granted judgment as a matter of
law against the Muellers’ failure to train claim. To establish
this claim, the Muellers had to “present[ ] . . . evidence of
prior incidents” of the same character that would have made
City officials “aware of the situation such that the [City] could
reasonably be said to have been deliberately indifferent to the
need for further training.” Merrit v. Cnty. of Los Angeles, 875
F.2d 765, 771 n.10 (9th Cir. 1989) (internal quotation marks
and alteration omitted).
The Muellers presented four “prior incidents” to support
their claim. These incidents were insufficient to put the City
on notice such that it could reasonably be said to have been
deliberately indifferent to the need for further training. The
Muellers rely exclusively on reports and affidavits prepared
by officers, rather than complaints by the parents or other evi-
dence that may have flagged these training problems for the
City. See City of Canton v. Harris, 489 U.S. 378, 398-99
(1989). Without ruling on the merits of these incidents, these
reports show officers taking measured steps to respond to life-
or-death threats to infants. Nothing in these reports would
have alerted a reviewing supervisor that the officers’ training
was so inadequate that the City can be said to have been
deliberately indifferent to the need for training.
MUELLER v. CITY OF BOISE 12931
VIII
The Protective Order
We “review the grant or denial of a motion to quash a sub-
poena for abuse of discretion.” In re Cal. Pub. Util. Comm’n,
892 F.2d 778, 780 (9th Cir. 1989). “Such abuses must be
unusual and exceptional; we will not merely substitute our
judgment for that of the trial judge.” Premium Serv. Corp. v.
Sperry & Hutchinson Co., 511 F.2d 225, 229 (9th Cir. 1975).
[18] The district court’s handling of the court’s protective
order granted to the Ada County Prosecutor’s Office was not
defective. The prosecutor’s complete file was turned over to
and examined by the court. The court in camera concluded
that the prosecutor’s file did not contain anything of signifi-
cance, a point conceded during oral argument; and no ade-
quate showing of relevance has yet been offered by the
Muellers. They made no effort to subpoena or to depose the
persons who were no longer in the prosecutor’s office who
were responsible for the material in the file, and they made no
effort to include the file under seal in the record. Given this
record, we cannot conclude that the district court abused its
discretion in granting the protective order to the Ada County
Prosecutor’s Office. See In re Cal. Pub. Util. Comm’n, 892
F.2d at 780. Furthermore, the Muellers have not made the req-
uisite showing that they were prejudiced by the district court’s
handling of the protective order. See Konop v. Hawaiian Air-
lines, Inc., 302 F.3d 868, 886 (9th Cir. 2002).
IX
Class Certification
We “review a district court’s order denying class certifica-
tion for an abuse of discretion.” Vinole v. Countrywide Home
Loans, Inc., 571 F.3d 935, 939 (9th Cir. 2009).
12932 MUELLER v. CITY OF BOISE
[19] The Muellers argue that “class certification is particu-
larly appropriate when membership will be determined in the
future, and the challenge is to a continuing policy.” The fatal
defect in this argument is that the Muellers have not identified
either a generic policy or a refusal to act on the part of any
of the defendants that would be subject to the broad equitable
relief they seek. See Fed. R. Civ. P. 23(b). Moreover, their
request for class certification presents itself as an attempt to
represent persons not yet involved in a case or controversy,
and it lacks any showing of commonality, typicality, or ade-
quacy of representation. Wal-Mart Stores, Inc. v. Dukes, 564
U.S. ___, 131 S. Ct. 2541, 2551-57 (2011). “[T]o the extent
that [the Muellers] seek[ ] to represent a class of parents who
might in the future have their children removed, [they] lack[ ]
standing.” Caldwell, 928 F.2d at 335. The broad relief sought
by the Muellers is properly addressed as a matter of policy to
the legislature, not the courts. Thus, we conclude that the dis-
trict court’s decision to deny the Muellers class certification
was correct.
CONCLUSION
As best, this case involves a series of nighttime emergency
room judgments and decisions made under pressure about
which people might differ. At the end of the day, however, a
jury of their peers decided on the basis of a full and fair airing
of their evidence that the Muellers had not proved their case.
Doctors nowadays—especially in emergency rooms—and
police officers face daunting challenges, one of which is state
law requiring them to report to state authorities possible child
abuse, endangerment, or neglect. Their failure to do so lands
them in serious trouble. Also, a doctor’s failure to recognize
possible meningitis is equally problematic—as we discover
from the testimony of Dr. Shapiro, the Muellers’ expert wit-
ness.
Society has seen fit to qualify parental rights in certain cir-
cumstances in favor of the life and liberty rights of a child.
MUELLER v. CITY OF BOISE 12933
When the statutory due process used to actualize a child’s
right as recognized by state law comes into play, understand-
ably parents will be upset. This case illustrates the validity of
Justice Rehnquist’s observation in Santosky v. Kramer, 455
U.S. 745, 771 (1982) (Rehnquist, J. dissenting), that “[s]tate
intervention in domestic relations has always been an
unhappy but necessary feature of life in our organized soci-
ety.” If anything, the completed record shows that Dr. Mac-
donald exercised his best judgment in an emergency setting in
favor of ensuring an infant’s safety from the very peril that
caused her mother to take her in the middle of the night to a
hospital emergency room. This is hardly the stuff of which a
cognizable civil rights violation can be made.
AFFIRMED.