James Liebsack v. United States

MEMORANDUM

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 (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 Fed.Appx. 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…