Ditto v. McCurdy

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JANIE DITTO, 
Plaintiff-Appellant,
v. No. 02-16252
JOHN A. MCCURDY, JR., M.D.,
Defendant-Appellee,  D.C. No.
CV-01-00602-HG
and OPINION
PAUL S. SAKUDA, Trustee,
Trustee.

Appeal from the United States District Court
for the District of Hawaii
Helen Gillmor, District Judge, Presiding

Argued and Submitted
November 6, 2007—Honolulu, Hawaii

Filed December 14, 2007

Before: Diarmuid F. O’Scannlain, A. Wallace Tashima, and
Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

16423
 DITTO v. MCCURDY 16425

COUNSEL

Christopher A. Dias, Schutter Dias & Smith, Honolulu,
Hawaii, for the plaintiff-appellant.

Richard H. Grover, Honolulu, Hawaii, for the defendant-
appellee.
16426 DITTO v. MCCURDY
OPINION

MILAN D. SMITH, JR., Circuit Judge:

Plaintiff-Appellant Janie Ditto appeals the decision of the
district court affirming the bankruptcy court’s grant of
Defendant-Appellee John McCurdy’s motion for summary
judgment and denying Ditto’s motion for leave to amend the
pleadings.

Ditto seeks a judgment of non-dischargeability of McCur-
dy’s debt under 11 U.S.C. § 523(a)(6), which grants an excep-
tion to discharge for any debt “for willful and malicious injury
by the debtor.” She argues that the malpractice judgment she
previously secured against McCurdy, based in part on a the-
ory of informed consent, constitutes a debt for “willful and
malicious injury.” She also argues, in the alternative, that she
should be permitted to amend her complaint to object to
granting McCurdy a discharge in bankruptcy, even though
McCurdy was granted a discharge more than a year before her
motion to amend.

We reject both arguments and affirm the district court’s
decision.

I

Janie Ditto is a Korean immigrant who came to the United
States in 1976. She suffers from several chronic illnesses,
including diabetes and hyperthyroidism. The drug treatment
for her hyperthyroidism caused her breasts to flatten, and in
1986 she went to John McCurdy for breast augmentation sur-
gery.1 The surgery was unsuccessful, and resulted in compli-
cations requiring six additional surgical procedures over
1
An extensive summary of the facts of Ditto’s underlying claim against
McCurdy is set forth in Ditto v. McCurdy, 947 P.2d 961, 968-72 (Haw.
Ct. App.), aff’d, 947 P.2d 952 (Haw. 1997).
 DITTO v. MCCURDY 16427
eleven months, during which Ditto suffered significant physi-
cal and psychological trauma.

In 1989, she filed suit against McCurdy, alleging negli-
gence and fraud. The negligence component of her claim
alleged both that McCurdy exercised inadequate care in his
treatment of Ditto and that he failed to obtain informed con-
sent by inadequately disclosing the risks of surgery. The fraud
claim was based on a theory that McCurdy was under an affir-
mative obligation to disclose his qualifications (or lack
thereof) to perform plastic surgery and failed to do so. In
1992, Ditto won a judgment of $2,788,988.31, including puni-
tive damages, pre-judgment interest, and costs. Shortly there-
after, McCurdy both appealed to the Hawai’i Intermediate
Court of Appeals and filed for bankruptcy in the bankruptcy
court.

In January 1993, Ditto initiated the present adversary pro-
ceeding in the bankruptcy court, seeking a judgment of non-
dischargeability of McCurdy’s debt arising out of the mal-
practice judgment under 11 U.S.C. § 523(a)(2), (4), and (6),
and objecting to discharge of the debtor under 11 U.S.C.
§ 727(a)(4) and (a)(7).2 In 1996, the bankruptcy court granted
2
11 U.S.C. § 727(a) provides that “[t]he court shall grant the debtor a
discharge unless” one of the grounds listed in paragraphs (a)(1) to (a)(12)
obtains. Ditto listed paragraphs (a)(4) and (a)(7) in her complaint, which
deny discharge if:
(4) the debtor knowingly and fraudulently, in or in connection
with the case—
(A) made a false oath or account;
(B) presented or used a false claim;
(C) gave, offered, received, or attempted to obtain money,
property, or advantage, or a promise of money, property, or
advantage, for acting or forbearing to act; or
(D) withheld from an officer of the estate entitled to posses-
sion under this title, any recorded information, including
16428 DITTO v. MCCURDY
Ditto’s motion for summary judgment, holding the debt non-
dischargeable under 11 U.S.C. § 523(a)(6), which grants an
exception to discharge for any debt “for willful and malicious
injury by the debtor.” At the time, the application of
§ 523(a)(6) was governed in this circuit by Impulsora Del
Territorio Sur. S.A. v. Cecchini (In re Cecchini), 780 F.2d
1440 (9th Cir. 1986). Under Cecchini, the plaintiff was “not
required to prove that the debtor acted with intent to injure”;
rather, he needed only show that the debtor committed “a
wrongful act . . . , done intentionally, necessarily produc[ing]
harm and . . . without just cause or excuse, . . . even absent
proof of a specific intent to injure.” Id. at 1442.

In 1997, however, the Hawai’i Supreme Court reversed the
underlying malpractice judgment with respect to liability for
fraud, holding that McCurdy had no affirmative duty to dis-
close his qualifications. Ditto v. McCurdy, 947 P.2d 952, 958
(Haw. 1997). The court affirmed the finding of gross negli-
gence and ordered the case remanded for a redetermination of
punitive damages. Id. at 961. With the fraud count reversed,
and only a judgment for negligence remaining, McCurdy
made a Rule 60(b) motion before the bankruptcy court, asking
it to set aside its judgment of non-dischargeability.3 Although

books, documents, records, and papers, relating to the debt-
or’s property or financial affairs;
...
(7) the debtor has committed any act specified in paragraph (2),
(3), (4), (5), or (6) of this subsection, on or within one year before
the date of the filing of the petition, or during the case, in connec-
tion with another case, under this title or under the Bankruptcy
Act, concerning an insider.
3
Federal Rule of Civil Procedure 60(b) provides: “On motion and upon
such terms as are just, the court may relieve a party or a party’s legal rep-
resentative from a final judgment, order, or proceeding for the following
reasons: . . . (5) the judgment has been satisfied, released, or discharged,
or a prior judgment upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment should have pro-
spective application . . . .”
 DITTO v. MCCURDY 16429
this motion was rejected by both the bankruptcy court and dis-
trict court, this court remanded the case with instructions to
grant the motion in 2000. Ditto v. McCurdy (In re McCurdy),
2000 WL 1206003 (9th Cir. 2000) (unpublished memoran-
dum).

In the interim, after McCurdy filed the 60(b) motion but
before it was ultimately granted by this court, the United
States Supreme Court, in Kawaauhau v. Geiger, 523 U.S. 57
(1998), clarified the meaning of 11 U.S.C. § 523(a)(6)’s
exemption from discharge. It held that “debts arising from
recklessly or negligently inflicted injuries do not fall within
the compass of § 523(a)(6).” Id. at 62.

On rehearing in the bankruptcy court, McCurdy moved for
summary judgment and Ditto moved to amend her complaint
to restore the § 727 objection to discharge. The bankruptcy
court granted the motion for summary judgment and denied
the motion to amend. Ditto appealed to the district court,
which affirmed the bankruptcy court’s decision. Ditto then
appealed to this court.

II

We have jurisdiction to review the decisions of the district
court generally under 28 U.S.C. § 1291, and to review the
decisions of the district court hearing appeals from the bank-
ruptcy court specifically under 28 U.S.C. § 158(d). We review
the district court’s decision on appeal from a bankruptcy court
de novo, giving no deference to the district judge’s determina-
tions. Metcalf v. Golden (In re Adbox, Inc.), 488 F.3d 836,
839 (9th Cir. 2007); First Ave. West Bldg., LLC v. James (In
re Onecast Media, Inc.), 439 F.3d 558, 561 (9th Cir. 2006).
We review a grant of a summary judgment de novo. Metcalf,
488 F.3d at 840; Am. Broad. Sys., Inc. v. Nugent (In re Beta-
com of Phoenix, Inc.), 240 F.3d 823, 827-28 (9th Cir. 2001).
16430 DITTO v. MCCURDY
III

Section 523(a)(6) of the Bankruptcy Code excepts from
discharge any debt “for willful and malicious injury by the
debtor to another entity or to the property of another entity.”
Before 1998, there was some doubt as to the exact mental
state required of the debtor in order for a debt to fall into this
exception. Some circuits, including this circuit, interpreted
§ 523(a)(6) to include unintended injuries, so long as the acts
themselves were deliberate, wrongful, and necessarily caused
injury. Cecchini, 780 F.2d at 1443; see also Perkins v.
Scharffe, 817 F.2d 392, 394 (6th Cir. 1987); First Nat’l Bank
v. Franklin (In re Franklin), 726 F.2d 606, 610 (10th Cir.
1984) (“Appellant intended the acts that he did perform,
which acts performed in the manner and under the conditions
present in this particular situation necessarily resulted in the
injury. That is sufficient to support a finding of willful and
malicious conduct.”).

In 1998, however, the Supreme Court clarified that the
§ 523(a)(6) exception “is confined to debts ‘based on what the
law has for generations called an intentional tort.’ ” Geiger,
523 U.S. at 60 (quoting Geiger v. Kawaauhau (In re Geiger),
113 F.3d 848, 852 (8th Cir. 1997) (en banc)). Drawing on the
Second Restatement of Torts, the Supreme Court noted that
“[i]ntentional torts generally require that the actor intend ‘the
consequences of an act,’ not simply ‘the act itself,’ ” id. at 61-
62 (quoting Restatement (Second) of Torts § 8A cmt. a
(1964)), and stated definitively that “debts arising from reck-
lessly or negligently inflicted injuries do not fall within the
compass of § 523(a)(6),” id. at 64. This court noted Geiger’s
abrogation of Cecchini in Peklar v. Ikerd (In re Peklar), 260
F.3d 1035, 1038 (9th Cir. 2001).

Ditto contends, first, that the Geiger standard, decided well
after her 1997 judgment of non-dischargeability became final,
should not be retroactively applied to her case now. Second,
she contends that her claim meets even the Geiger standard
 DITTO v. MCCURDY 16431
because McCurdy’s disclosure was so inadequate as to vitiate
any consent, rendering his actions a battery.

A

[1] Ditto asks this court to review the grant of McCurdy’s
motion for summary judgment under the more liberal Cec-
chini standard, rather than retroactively imposing that estab-
lished in Geiger. The general rule is that, when the Supreme
Court:

applies a rule of federal law to the parties before it,
that rule is the controlling interpretation of federal
law and must be given full retroactive effect in all
cases still open on direct review and as to all events,
regardless of whether such events predate or post-
date our announcement of the rule.

Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 96 (1993). “So
long as a case is sub judice, a federal court must apply a new
and supervening rule of federal law when applicable to the
issues in the case.” Wasserman v. Mun. Ct. of Alhambra Jud.
Dist., 543 F.2d 723, 725 (9th Cir. 1976). Moreover, this cir-
cuit has applied Geiger itself retroactively in numerous cases.
See, e.g., Petralia v. Jercich (In re Jercich), 238 F.3d 1202,
1207-08 (9th Cir. 2001); Banks v. Gill Distrib. Ctrs., Inc. (In
re Banks), 263 F.3d 862, 869 (9th Cir. 2001); Bino v. Bailey
(In re Bailey), 197 F.3d 997, 1000 (9th Cir. 1999). The pos-
ture of this case differs from the cases cited above, however,
because Ditto had already obtained a final judgment in 1996,
which became non-appealable as of January 19, 1997—more
than a year before Geiger was decided. Ditto maintains that
the law as of that date ought to apply to this case, even after
the former judgment was vacated following McCurdy’s suc-
cessful Rule 60(b) motion.

[2] This argument is misplaced. When a judgment has been
set aside pursuant to Rule 60(b), the case stands as if that
16432 DITTO v. MCCURDY
judgment had never occurred in the first place.4 The case
remains open on direct review, and the court must apply the
law as it stands, including any intervening precedents. Gei-
ger’s interpretation of “willful and malicious” therefore con-
trols our review of this case.5

B

In the alternative, Ditto asserts that, even under the height-
ened Geiger standard for “willful and malicious injury,” this
court should find that her malpractice judgment against
McCurdy falls within the ambit of the § 523(a)(6) exception.
As stated above, the Supreme Court stated in Geiger that the
“willful and malicious injury” exception of § 523(a)(6) is lim-
ited to cases where the debtor not only meant to act, but
meant to cause injury. 523 U.S. at 61-62. Notably, Geiger and
the two circuit court precedents it explicitly overturned, Per-
kins v. Scharffe, 817 F.2d 392 (6th Cir. 1987), and In re
Franklin, 726 F.2d 606 (10th Cir. 1984), all involved cases of
medical malpractice. Ditto distinguishes these cases, however,
4
See 47 Am. Jur. 2d Judgments § 714 (2006) (“When a judgment has
been rendered and later set aside or vacated, the matter stands precisely as
if there had been no judgment. The vacated judgment lacks force or effect
and places the parties in the position they occupied before entry of the
judgment.”) (citations omitted).
5
Ditto also cites a three-part equitable exception to retroactivity con-
tained in Coopers & Lybrand v. Sun-Diamond Growers, 912 F.2d 1135,
1138 (9th Cir. 1990). This exception is identical to that outlined by the
Supreme Court in Chevron Oil Co. v. Hudson, 404 U.S. 97, 106-07
(1971), which the Court effectively overruled in Harper, 509 U.S. at 97-
98 (“[T]he legal imperative ‘to apply a rule of federal law retroactively
after the case announcing the rule has already done so’ must ‘prevai[l]
over any claim based on a Chevron Oil analysis.’ ”) (quoting James B.
Beam Distilling Co. v. Georgia, 501 U.S. 529, 540 (1991) (opinion of
Souter, J.)). This circuit has recognized that the Chevron Oil equitable
exception “has been discredited by the subsequent Supreme Court deci-
sions of Griffith v. Kentucky and Harper v. Virginia Dept. of Taxation.”
United States v. Newman, 203 F.3d 700, 701 (9th Cir. 2000) (citations
omitted).
 DITTO v. MCCURDY 16433
by asserting that her underlying claim is an intentional tort,
which satisfies even the more stringent standard of Geiger.
Her malpractice judgment rested, in part, on McCurdy’s fail-
ure to adequately disclose the risks inherent in her surgery.
Ditto, 947 P.2d at 960. This failure to disclose, Ditto con-
tends, vitiated her consent to the procedure and rendered
McCurdy’s operation on her an unconsented touching—in
other words, a battery.

[3] This argument fails. The failure to obtain informed con-
sent, without evidence of intent to injure, does not give rise
to a willful and malicious injury within the meaning of
§ 523(a)(6). While there are some cases that treat an informed
consent action as sounding in battery,6 most jurisdictions dis-
tinguish between medical battery (where the doctor has failed
to obtain any authorization, or has gone well beyond the
authorization given) and a negligent failure to disclose, with
the latter sounding in negligence, rather than battery.7 See
generally W. Page Keeton et al., Prosser & Keeton on the
Law of Torts § 18 at 120-21 (5th Ed. 1984) (hereinafter
“Prosser”); 70 C.J.S. Physicians & Surgeons § 122 (2005); 61
Am. Jur. 2d Physicians, Surgeons, Etc. §§ 151-53 (2002). The
action for informed consent, ultimately, focuses on the rea-
sonableness of the physician’s disclosure to the patient. Can-
terbury v. Spence, 464 F.2d 772, 780 & n.15 (D.C. Cir. 1972).
It is the breach of this duty to disclose all the material risks
a patient would need to determine his or her course of treat-
ment, and the breach’s causation of physical injury, that give
rise to an action for informed consent. Id. at 780-82; Prosser
§ 32, at 190-92; 61 Am. Jur. 2d Physicians, Surgeons, Etc.
6
See, e.g., Montgomery v. Bazaz-Sehgal, 798 A.2d 742, 748-49 (Pa.
2002); Bang v. Charles T. Miller Hosp., 88 N.W.2d 186, 190 (Minn.
1958); Belcher v. Carter, 234 N.E.2d 311, 312 (Ohio 1967).
7
See, e.g., Faya v. Almaraz, 620 A.2d 327, 334 n.6 (Md. 1993); Scott
v. Bradford, 606 P.2d 554, 557 (Okla. 1979); Perin v. Hayne, 210 N.W.2d
609, 617-18 (Iowa 1973); Nishi v. Hartwell, 473 P.2d 116, 118-19 (Haw.
1970), overruled on other grounds, Carr v. Strode, 904 P.2d 489 (Haw.
1995).
16434 DITTO v. MCCURDY
§ 153. The elements of this cause of action—duty, breach,
causation, damages—are those of a negligence claim.

[4] Moreover, “[m]erely because a tort is classified as
intentional does not mean that any injury caused by the tort-
feasor is willful.” Miller v. J.D. Abrams Inc. (In re Miller),
156 F.3d 598, 604 (5th Cir. 1998). The Supreme Court in Gei-
ger was clear that in order for the injury to be “willful and
malicious,” the debtor must intend the injury itself. Geiger,
523 U.S. at 61-62. The Restatement (Second) of Torts § 8A,
a comment to which the Supreme Court cites favorably in
Geiger, defines “intent” as “denot[ing] that the actor desires
to cause consequences of his act, or that he believes the con-
sequences are substantially certain to result from it.” In order
to qualify for the § 523(a)(6) “willful and malicious” excep-
tion to discharge, therefore, the debtor must have acted with
either the desire to injure or a belief that injury was substan-
tially certain to occur.8 There is no evidence in the record that
might lead a trier of fact to conclude that McCurdy had any
such desire or belief. For this reason, we hold that McCurdy’s
debt to Ditto is not non-dischargeable under § 523(a)(6).

IV

While Ditto’s original complaint made a brief reference to
an objection to discharge pursuant to 11 U.S.C. § 727(a)(4)
and (7), the focus was largely on the dischargeability of
McCurdy’s debt to Ditto. In 1997, following the judgment of
non-dischargeability with respect to McCurdy’s debts to her,
Ditto voluntarily dismissed her § 727 objection. Now that
judgment has been set aside, she seeks to amend her com-
plaint to reinstate the objection to discharge.9
8
See In re Jercich, 238 F.3d at 1208 (“[U]nder Geiger, the willful injury
requirement of § 523(a)(6) is met when it is shown either that the debtor
had a subjective motive to inflict the injury or that the debtor believed that
injury was substantially certain to occur as a result of his conduct.”).
9
McCurdy claims that Ditto has waived this argument because she did
not present it as an issue in the “Statement of the Issues Presented” or the
 DITTO v. MCCURDY 16435
[5] Rule 15(a) of the Federal Rules of Civil Procedure pro-
vides that, after the initial period for amendments as of right,
pleadings may be amended only by leave of court, which
“leave shall be freely given when justice so requires.” See
Fed. R. Bankr. P. 7015 (applying Fed. R. Civ. P. 15 to adver-
sary bankruptcy proceedings). “Four factors are commonly
used to determine the propriety of a motion for leave to
amend. These are: bad faith, undue delay, prejudice to the
opposing party, and futility of amendment.” Roth v. Garcia
Marquez, 942 F.2d 617, 628 (9th Cir. 1991) (citing Foman v.
Davis, 371 U.S. 178, 182 (1962)). This court reviews a denial
of a leave to amend a complaint for abuse of discretion.
Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau,
701 F.2d 1276, 1292 (9th Cir. 1983). “The abuse of discretion
standard requires that we ‘not reverse a district court’s exer-
cise of its discretion unless we have a definite and firm con-
viction that the district court committed a clear error of
judgment in the conclusion it reached.’ ” Nat’l Wildlife Fed’n
v. Nat’l Marine Fisheries Serv., 422 F.3d 782, 798 (9th Cir.
2005) (quoting SEC v. Coldicutt, 258 F.3d 939, 941 (9th Cir.
2001)).

[6] The bankruptcy court granted McCurdy a discharge in
bankruptcy on February 15, 2000. Ditto did not move to
amend her complaint to restore her § 727 objection until May
25, 2001—more than fifteen months later. “[A] total bar to
discharge is an extreme penalty.” Rosen v. Bezner, 996 F.2d
1527, 1534 (3d Cir. 1993). If the ordinary action of § 727(a)

“Statement of Appellate Jurisdiction” in her appeal to the district court,
contrary to Bankruptcy Rule 8010(a). She did, however, address the issue
in the body of her opening brief to the district court, and McCurdy
responded to it in his answering brief. The district court reviewed the issue
on the merits. On appeal to this court, the issue is raised properly and
McCurdy responded. As such, there is no surprise or prejudice in raising
it here, and the issue should be deemed ripe for review. See, e.g., Levald,
Inc. v. City of Palm Desert, 998 F.2d 680, 691 (9th Cir. 1993) (permitting
review of a denial to amend complaint where briefed by the parties and
the appellee was not prejudiced).
16436 DITTO v. MCCURDY
is extreme, it must surely be still more extreme to order, retro-
actively, a revocation of the discharge.10 Given the value of
finality in bankruptcy, as well as the difficulty of unscram-
bling an egg by effectively revoking discharge (even Ditto’s
counsel, arguing before the bankruptcy court, characterized
the consequences of granting the motion to amend as a “logis-
tical nightmare”), we hold that the bankruptcy court did not
err in denying Ditto leave to amend her complaint.11

AFFIRMED.

10
Revocation of discharge, available under § 727(d), is typically limited
to one year after discharge, and then only in exceptional circumstances. 11
U.S.C. § 727(e)(1).
11
We also note that Ditto’s original complaint in the adversary proceed-
ing was based solely on the malpractice judgment and makes no mention
of McCurdy’s alleged misuse of the corporate form, which she now claims
as the basis for her § 727 objection. Even if the amendment were allowed,
any claim arising out of McCurdy’s purported corporate fraud would not
relate back to the original complaint because it does not “ar[ise] out of the
conduct, transaction, or occurrence set forth or attempted to be set forth
in the original pleading.” Fed. R. Civ. P. 15(c)(2). Hence, her claim would
be untimely. See Fed. R. Bankr. P. 4004(a) (limiting § 727(a) objections
to “60 days after the date of the first date set for the meeting of creditors
under [11 U.S.C.] § 341(a)”).