Robert Wolcoff v. United States

MEMORANDUM

1. We’ve held that non-delegable duty is a theory of ■vicarious liability under Alaska law. M.J. v. United States, 721 F.3d 1079, 1081 (9th Cir.2013) (relying on Ward v. Lutheran Hosps. & Homes Soc’y of Am., Inc., 963 P.2d 1081 , 1034-85 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…