NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 27 2016
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
CHRISTINE MYERS, as Guardian Ad No. 14-56895
Litem for L. MYERS, a minor,
individually, D.C. No. 3:02-cv-01349-BEN-MDD
Plaintiff - Appellant, MEMORANDUM*
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Court Judge, Presiding
Argued and Submitted June 6, 2016
Pasadena, California
Before: KOZINSKI, and RAWLINSON, Circuit Judges, and BENNETT, Senior
District Judge.**
Plaintiff Christine Myers seeks damages from the United States for injuries
to her child, L. Myers, allegedly caused by exposure to toxic heavy metal thallium.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Mark W. Bennett, Senior District Judge for the U.S.
District Court for the Northern District of Iowa, sitting by designation.
The thallium allegedly came from soil dumped by a Navy contractor into a landfill
adjacent to L. Myers’s residence and school during a soil remediation project at
Camp Pendleton in 1999 and 2000. In 2009, three years after phase one of the
bench trial was submitted, the district judge ruled the United States did not breach
any duty in conducting the soil remediation project and the “discretionary
function” exception to tort liability of the United States deprived the court of
subject matter jurisdiction. On Myers’s first appeal, we reversed and remanded for
trial phases two (“actual and proximate causation”) and three (“damages”), but we
declined Myers’s request to reassign the case to a different judge. Myers v. United
States, 652 F.3d 1021, 1037-38 (9th Cir. 2011) (Myers I). After a second bench
trial in early 2013, the district judge entered a lengthy and thorough decision. He
found the breaches of duty we had identified were not the cause of any injuries
and, based on several alternative holdings, directed entry of judgment for the
United States. Myers v. United States, No. 02cv1349-BEN, 2014 WL 6611398
(S.D. Cal. Nov. 20, 2014). This second appeal followed. We affirm.
1. Myers contends the district judge erroneously failed to recuse himself
on remand, pursuant to 28 U.S.C. § 455(a), because of his bias and lack of
impartiality. Myers did not file a formal motion for recusal before the district
court. “Failure to move for recusal at the trial level . . . does not preclude raising
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on appeal the issue of recusal under [28 U.S.C.] § 455,” Noli v. Comm’r, 860 F.2d
1521, 1527 (9th Cir. 1988), but it ordinarily means that review is for plain error,
United States v. Holland, 519 F.3d 909, 911 n.1 (9th Cir. 2008). At a hearing on
the record almost five months after our decision in Myers I, the district judge
expressed his unhappiness with the remand, this panel’s decision, and even
members of this panel. Myers’s counsel then stated that he “underst[oo]d the
court’s feeling about [a panel member] and the finding that he made,” but that
counsel “d[id]n’t want [L.] Myers to get caught in that cross fire.” Tr. of Hr’g
12/05/11, 20:10-14. The district judge responded, “I think you asked for me to be
removed and some other judge to be—that is not going to happen.” Id. at 20:15-17
(referring to Myers’s request in Myers I briefing that, if a remand was ordered, it
should be assigned to a new judge). Myers’s counsel clearly stated grounds for the
judge’s recusal; her failure to make a formal motion for the judge’s recusal was
excusable, as doing so would have been futile, in light of the judge’s response; we
construe her counsel’s comments as a motion for recusal; and we review the
judge’s refusal to recuse himself for abuse of discretion. Glick v. Edwards, 803
F.3d 505, 508 (9th Cir. 2015).
A substantial part of Myers’s opening brief in this appeal is devoted to the
district judge’s statements about members of this panel and this panel’s remand
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decision as indicative of, or as the basis for, his bias and lack of impartiality.
Myers argues such expressions warranted recusal under 28 U.S.C. § 455(a) and
suggests they violated the Code of Conduct for United States Judges. Inexplicably,
the United States did not deign to respond to that argument in its answering brief,
even though it was Myers’s lead argument.
When questioned at oral argument, counsel for the government attempted to
explain this omission on the ground that he did not believe that the issue of the
district judge’s unhappiness with the panel and its decision was relevant or that it
was a strong argument for recusal. We disagree. We are troubled by the cavalier
attitude expressed by counsel for the government in the brief and at oral argument.
His view of the issue does not justify a complete failure to address it; indeed,
failure to address an issue in an answering brief may waive any argument on the
issue. See, e.g., United States v. Dreyer, 804 F.3d 1266, 1277 (9th Cir. 2015) (en
banc) (stating, “Generally, an appellee waives any argument it fails to raise in its
answering brief,” but noting exceptions); see also United States v. Johnson, 812
F.3d 757, 762 n.1 (9th Cir. 2016) (identifying additional circumstances as
exceptions to waiver). Here, counsel’s failure to address the issue is all the more
deficient, where the district judge made numerous disparaging comments about
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this panel’s decision and its members that could erode public confidence in the
judiciary.
“Section 455(a) of Title 28 of the United States Code requires a federal
judge to ‘disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.’” Liteky v. United States, 510 U.S. 540, 541 (1994)
(quoting § 455(a)). “[P]redispositions developed during the course of a trial will
sometimes (albeit rarely) suffice” to cause a judge’s impartiality to be reasonably
questioned, id. at 554, while “judicial rulings alone almost never constitute a valid
basis for a bias or partiality motion,” id. at 555. The question is whether the
judge’s opinions formed on the basis of facts introduced or events occurring in the
course of the proceedings “display[ed] a deep-seated favoritism or antagonism that
would make fair judgment impossible.” Id.
There is no question the district judge was unhappy about the remand and
with members of this panel at a hearing almost five months after our opinion was
filed. Nor is there a question that he was still unhappy, more than three years later,
at a hearing well over a year after the trial on remand from Myers I ended and only
a few months before he issued his decision on the second phase of the bench trial.
The district judge’s comments about this panel are a cause for serious concern.
Indeed, the more professional approach would have been for the district judge to
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focus solely on the legal issues rather than injecting personal comments that could
be easily interpreted as inappropriately attacking members of the panel.
Nevertheless, given the very high standard in Liteky, we find his comments
insufficient to warrant reversal. Similarly, the district judge’s alleged
predispositions against the plaintiff, her counsel, and her witnesses were developed
during the course of trial. Id. at 554. Also, his rulings and opinions on issues in
the case are reasoned and supported by the record. Id. at 555. Thus, we cannot
conclude that the district judge “display[ed] a deep-seated favoritism or
antagonism that would make fair judgment impossible.” Id. Myers is not entitled
to remand or other relief on the ground that the district judge’s failure to recuse
himself pursuant to § 455(a) was an abuse of discretion.
2. Next, Myers contends the district judge failed to follow the rule of the
mandate by regularly making findings contrary to our findings on the prior appeal.
Under the rule of the mandate, “[t]he district court may . . . ‘decide anything not
foreclosed by the mandate’. . . . But . . . commits ‘jurisdictional error’ if it takes
actions that contradict the mandate.” Stacy v. Colvin, 825 F.3d 563, 568 (9th Cir.
2016) (quoting Hall v. City of Los Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012)).
The mandate after the first appeal was that the United States breached its
mandatory duties to review the health and safety plan (HASP) and to ensure
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adherence to the safety plan in conducting the remediation project, Myers I, 652
F.3d at 1036-37, and the district judge was to conduct the “actual and proximate
causation” phase and the “damages” phase of the bench trial, see id. at 1037. The
district judge did not violate the mandate on remand by attempting to vary from or
revisit our decision on breaches of duty, but proceeded to the “causation” phase of
the trial, as directed, taking those breaches of duty as decided. Stacy, 825 F.3d at
568. Myers’s claims of “contrary findings” by the district judge do not withstand
careful scrutiny. Rather, she reads our findings or the district judge’s findings
more narrowly or broadly than the language used will bear or simply reads them
out of context. No remand or other relief is required on this second ground, either.
3. Myers argues the district judge erred by disregarding the opinions of
her experts because the district judge erroneously found her counsel improperly
“poisoned the well” and “manipulated” their opinions. She contends the experts
were all treating physicians who had formed and expressed their opinions based on
treatment, before her counsel provided them with publicly available information on
thallium, reports of others, or lab tests. “The mere fact that an expert witness has
talked with a party’s lawyer and then altered his or her opinion language, though it
might be considered relevant, does not require a factfinder to find that expert
witness is other than credible.” Hawaii Stevedores, Inc. v. Ogawa, 608 F.3d 642,
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650 (9th Cir. 2010) (emphasis added). On the other hand, where a treating
physician or expert is exposed to information that was not obtained from
examination or treatment, but from a party’s counsel, the factfinder may
reasonably believe the information influenced or colored the treating physician’s or
expert’s subsequent testimony. Cf. id. Indeed, while there may be good reasons
for providing treating physicians or experts with materials outside of their own
examination and treatment records prior to depositions or trial testimony, Myers
provided none. Ultimately, it is clear that “[f]acts casting doubt on the credibility
of an expert witness . . . are questions reserved for the fact finder.” City of Pomona
v. SQM N. Am. Corp., 750 F.3d 1036, 1053 (9th Cir. 2014). No remand or other
relief is required on this ground.
4. Myers’s last contention is that the district judge erred by denying her
motion to shift the burden to the United States to prove its negligence was not the
proximate cause of L. Myers’s injuries. Under California law, a “shift of the
burden of proof . . . may be said to rest on a policy judgment that [1] when there is
a substantial probability that a defendant’s negligence was a cause of an accident,
and [2] when the defendant’s negligence makes it impossible, as a practical matter,
for plaintiff to prove ‘proximate causation’ conclusively, it is more appropriate to
hold the defendant liable than to deny an innocent plaintiff recovery, unless the
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defendant can prove that his negligence was not a cause of the injury.” Haft v.
Lone Palm Hotel, 3 Cal. 3d 756, 774 n.19 (1970) (emphasis in the original). This
is a “narrow exception to the usual allocation of proof.” Thomas v. Lusk, 27 Cal.
App. 4th 1709, 1717 (1994).
Here, the district judge refused to invoke the exception, because he found
uncertainty (i.e., no substantial probability) as to either L. Myers’s injuries or
whether any such injuries were caused by thallium dust escaping from the landfill,
citing Jones v. Ortho Pharmaceutical Corp., 163 Cal. App. 3d 396, 406 (1985),
which in turn cites Haft. Myers argues there is “no doubt” L. Myers suffered
injury and the cause of her inability to prove causation with certainty is the
negligence of the United States. We disagree.
First, the district judge did not erroneously conclude the evidence of injury
from thallium exposure was uncertain. The district judge reasonably concluded the
claim of elevated thallium in L. Myers’s system was based on only one urine test
“reported out” by the tester, but that test was not reliable. The district judge also
identified evidence casting doubt on whether any of L. Myers’s alleged symptoms
or injuries were the result of thallium exposure or were actually injuries at all.
That evidence included, but was not limited to, evidence that L. Myers’s younger
sister, for whom thallium exposure was never alleged, also suffered from alopecia
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(hair loss) a few years after L. Myers did, suggesting that the cause of both girls’
hair loss was genetic, rather than thallium exposure. Lone Palm Hotel, 3 Cal. 3d at
774 n.19 (first requirement). Similarly, extensive sampling of L. Myers’s yard,
house (inside and outside), other family members, pets, and school showed no
elevated thallium levels, suggesting that no thallium dust had escaped from the
landfill. Id. Such extensive testing also demonstrates that the defendant’s breaches
of duty in dust monitoring did not “make[] it impossible, as a practical matter, for
plaintiff to prove ‘proximate causation’ conclusively,” if there was evidence of
causation to be found. Id. (second requirement).
No remand or other relief is required on this last ground.
AFFIRMED.
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