FILED
NOT FOR PUBLICATION
JUN 13 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MELVIN KORNBERG, No. 16-15371
Plaintiff-Appellant, D.C. No.
2:14-cv-02165-JCM-NJK
v.
UNITED STATES OF AMERICA; MEMORANDUM*
DEPARTMENT OF VETERANS
AFFAIRS,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted June 9, 2017**
Pasadena, California
Before: GRABER and MURGUIA, Circuit Judges, and DAVILA,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Edward J. Davila, United States District Judge for the
Northern District of California, sitting by designation.
Plaintiff Melvin Kornberg appeals from the district court’s dismissal of his
complaint. The court dismissed Plaintiff’s contract claims because those claims
must be brought in the Court of Federal Claims, and Plaintiff does not contest that
ruling. The court dismissed Plaintiff’s tort claim against the United States because
he failed to comply with Nevada’s affidavit-of-merit statute, which requires a
plaintiff in a medical malpractice action to file "an affidavit, supporting the
allegations contained in the action, submitted by a medical expert who practices or
has practiced in an area that is substantially similar to the type of practice engaged
in at the time of the alleged malpractice." Nev. Rev. Stat. § 41A.071 (2014).
Plaintiff argues that his tort claim against the United States does not trigger that
requirement. Reviewing de novo, Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir.
2008), we reverse.
1. We predict that the Supreme Court of Nevada would hold that a plaintiff
suing a defendant under a respondeat superior theory does not have to comply with
the now-superseded version of the affidavit-of-merit statute that applies in this
case,1 even when a doctor or other medical professional committed the underlying
negligent acts or omissions. See McQuade v. Ghazal Mountain Dental Grp., P.C.,
1
The statute was amended in 2015, but it is the pre-amendment version that
governs here. See 2015 Nev. Stat. ch. 439, § 11 ("The amendatory provisions of
this act apply to a cause of action that accrues on or after [June 9, 2015].").
2
Nos. 61347 & 61846, 2014 WL 4804063, at *1 (Nev. Sept. 24, 2014)
(unpublished) (holding that the plaintiff "did not have to comply with [§] 41A.071
because the action was based on respondeat superior and negligent hiring, not
medical or dental malpractice"); see also Zhang v. Barnes, No. 67219, 2016 WL
4926325, at *6 (Nev. Sept. 12, 2016) (unpublished) (characterizing a party’s
argument based on McQuade as "correct," but rejecting it on other grounds).2 The
gravamen of Plaintiff’s complaint is that individual doctors working for the United
States acted negligently in diagnosing him, and the United States is liable only
because the doctors were acting within the scope of their employment with the
United States. See Pelletier v. Fed. Home Loan Bank of S.F., 968 F.2d 865, 876
(9th Cir. 1992) ("Under the [Federal Tort Claims Act ("FTCA")], an individual
who has suffered an injury cognizable in tort as a result of the conduct of a federal
employee may bring suit against the United States if that employee was acting
within the scope of his office or employment." (internal quotation marks omitted)).
Accordingly, the United States’ liability is premised on respondeat superior
2
Unpublished dispositions of the Supreme Court of Nevada, though not
binding on us, may be considered as evidence of the content of Nevada law. See
Emp’rs Ins. of Wausau v. Granite State Ins. Co., 330 F.3d 1214, 1220 n.8 (9th Cir.
2003) ("[W]e may consider unpublished state decisions, even though such opinions
have no precedential value.").
3
principles, and Plaintiff was not required to submit an affidavit of merit under the
applicable version of § 41A.071 when suing the United States.
2. In the alternative, the affidavit requirement may be viewed as procedural,
rather than substantive. See Zohar v. Zbiegien, 334 P.3d 402, 406 (Nev. 2014)
(referring to § 41A.071 as "a preliminary procedural rule"); Borger v. Eighth
Judicial Dist. Court, 102 P.3d 600, 605 (Nev. 2004) (referring to § 41A.071 as a
"procedural rule of pleading"). And federal law, not state law, governs all
procedural aspects of a claim under the FTCA. Liebsack v. United States, 731
F.3d 850, 855 (9th Cir. 2013). The FTCA contains no affidavit requirement.
REVERSED.
4